“Happy are they who maintain justice and do righteousness at all times.” Psalm 106:3
Mediation is the most effective means of resolving a dispute and enjoys wide popularity among the Bench, the Bar and litigants. The long delays and costs which are part and parcel of litigation are avoided by a successful mediation. What follows below are some observations and comments formed over the course of my experience in mediating cases.
Up until 1990, mediation was an exotic and rare adjunct to litigation. There were no mediation courses to speak of in Ontario and few lawyers were skilled in mediation techniques. Learning from the American experience and concerned about the rising costs of claims, the insurance industry and the Plaintiff’s Bar embraced mediation as a new way of resolving claims and as a way to ease the stress and strain of litigation. In recent years, the quality of advocacy, written and oral, has increased substantially. But effective mediation can only be accomplished if the parties, both the insurance company and the plaintiff’s counsel, are prepared for the process.
Preparing for Mediation
Preparation, preparation and more preparation is indispensable for an effective mediation. It is advisable to meet with your clients about one week before the scheduled mediation to review the mediation summary, to discuss strategy and to give your client an assessment of the value of his or her claim. In my experience, mediations are not successful when clients have unrealistic expectations, expectations removed from the reality of the litigation.
During the mediation briefing, it is helpful to review with your client what the mediation process is all about. In our office, the client is advised of the date of the mediation months before. Each client is provided with a written summary describing the mediation process, how long the mediation will take or the length of the mediation and what to expect during the mediation. We also let our client know that there will be lulls during the course of the day and we encourage them to bring books, magazines or “downtime” material to keep them occupied.
During the mediation briefing, we review with our clients how damages are calculated by the courts. We discuss the “cap” on general damages and the principles involved in assessing claims for future economic loss (loss of income; loss of earning capacity; loss of competitive advantage). We also discuss the strengths and weaknesses of their case and stress upon them that a mediation is about compromise and, that if they want to persuade the other side that they are wrong, the mediation will not succeed. We also review with the client what he or she will be asked at the mediation.
In most cases, it is important for the insurance adjuster to meet the client. Mediation is sometimes the only time when the insurance adjuster, or claims examiner, has an opportunity to meet the plaintiff. It is important to humanize the plaintiff. It is also important that the plaintiff express to the claims examiner or adjuster, what he or she has endured as a result of the accident.
For the full article, click to download: Mediating and Settling Claims for Damages