An important step in the litigation process is mediation. This article is an expansion to my previous article entitled “The Civil Litigation Process: An Overview”.
Mediation is a form of alternative dispute resolution. It is a method by which the disputing parties and their lawyers appear before a neutral third party – the mediator – in an attempt to settle the dispute without the necessity of a trial. In certain jurisdictions, mediation is mandatory in Ontario before going to trial.
Mediators do not decide cases or impose settlements. The mediator’s role is to help the disputing parties communicate with each other in order to gain a better understanding of their interests and to assist them in reaching their own mutually acceptable settlement to the dispute.
A mediation can often be a more effective venue for settlement discussions than trading offers back and forth in writing or over the phone. The parties will be present and are able to hear directly from the other side. The mediator is generally an experienced lawyer who will often give their own assessments of the pros and cons of the parties respective positions. Many mediators will give their own opinion on what they think of the offers from either side. Being in both rooms they can offer helpful suggestions that can make the difference between negotiations falling apart and a deal being reached.
Before going to the mediation, the parties prepare a document known as a mediation brief. This document explains each party’s side of the dispute to the mediator and the other parties involved. If a defendant is represented by an insurance company, the defendant themselves will not likely be in attendance, but rather it will be a representative of the insurance company who attends in their place.
The mediation typically begins with the mediator making opening remarks about the purpose and goals of mediation. This is followed by both lawyers making opening statements. Although clients are required to attend the mediation, they are not required to speak. Your lawyer can give you advice as to whether it is a good idea for you to speak or not.
Once the parties have presented their side of the dispute, they typically separate into different rooms. They exchange offers back and forth with the mediator’s assistance. The mediator goes back and forth between both rooms and offers suggestions to help both sides come closer to an agreement.
Although most personal injury cases settle at mediation, not all do. Even if a case does not settle, the mediation is often helpful in laying the groundwork for further discussion in the future. Note that what happens at the mediation is “without prejudice” – meaning that the details cannot be used in the proceedings as they go through. At trial, no one is permitted bring up anything that happened during the meditation, including any offers proffered. Neither party is wedded to their last offers unless they specifically leave the offer open.
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