Your lawyer has told you that the other side has agreed to mediate your case. The date of the mediation is fast approaching. You may be feeling anxious or unsure of what to expect. Here is an overview of a typical personal injury mediation, and some tips to help manage your anxiety.
This post is not legal advice. For specific questions relating to your case, please consult with your lawyer.
As your lawsuit progresses and each side gains a better understanding of the case to be met, parties will often decide to try to resolve the matter by mediation. Mediation is an alternative to going to trial. It is an opportunity for the parties to reach a compromise that will conclude the lawsuit without needing to proceed to trial.
Purpose of mediation
The main purpose of mediation is to resolve a lawsuit without having to go to trial. It is designed to help both parties reach a compromise that they can live with so that they can avoid the risk, expense, and uncertainty of a trial.
Mediations are voluntary (unless you are in a region with mandatory mediation, like Toronto, Ottawa or Windsor). Just because you attend a mediation, does not mean that you have to settle. If the parties are just too far apart, they are free to leave the mediation and continue the lawsuit. Everything that happens at mediation is confidential and cannot be used later if the lawsuit continues. This is to encourage the honest discussions necessary to reach a compromise.
Mediation is a collaborative process, facilitated by a professional mediator. The mediator is a neutral third party who will facilitate the discussions between the parties in the most productive manner.
Role of the mediator
As just mentioned, the mediator is neutral. They are paid regardless of the outcome of the mediation and have no vested interest in helping one side over the other. The mediator will not make decisions, give legal advice, or take sides. The mediator helps each party to understand the strengths and weaknesses in their case.
Mediation procedure
Prior to the mediation itself, the lawyers will exchange mediation memoranda that outline their theory of the case, with supporting evidence. They outline the facts, issues, and assessment of damages. Your lawyer will likely review both your mediation memorandum and the other side’s mediation memorandum with you in advance of the mediation.
On the day of the mediation, you may be in person or over zoom. In the post-Covid world, most mediations are conducted over Zoom. Your lawyer may want you in the office with them, while the other side and mediator join over Zoom.
At the beginning of the mediation, the people present will include you, your lawyer, the mediator, the other side’s lawyer, and the other party. Chances are, the other party will be a representative from the defendant’s insurance company rather than the other person, as it is the insurance company who will ultimately make any decisions regarding settlement or proceeding to trial.
The mediator will welcome everyone, go over the rules of mediation, and invite the plaintiff’s lawyer to start with opening remarks. Next the defendant’s lawyer will give opening remarks. The plaintiff’s lawyer may give a reply, or not. You may be invited to say something if you wish. You do not have to say anything, but you can if you want to. You should discuss whether to say anything at mediation with your lawyer beforehand.
After the opening remarks are done, you and your lawyer will be put into a breakout room while the other party goes to a different breakout room. The mediator will come back and forth between the parties exchanging offers until there is an agreement to settle, or an agreement to end the day and proceed to trial. This part can last all day, so pack some snacks and a lunch. You may want to bring a book as you may be waiting some time for the mediator to come back with the next offer.
At the end of the day, all the parties will come back into one Zoom room to say goodbye.
If you are successful in reaching a settlement, there may be some paperwork to complete with your lawyer before you leave.
Tips to manage your anxiety
Any part of a lawsuit can be stressful, mediations included. Here are a few tips to help reduce some of your anxiety if you are worried about it:
- Familiarize yourself with the process so that you know what to expect.
- Meet with your lawyer in advance of mediation to review your case and the other side’s arguments so that there are no surprises at mediation.
- Trust your lawyer to advocate for you during the day.
- Set realistic expectations. Mediation is about compromise, so you will likely not end a mediation getting everything you are asking for. The cost of early resolution before trial is discounting your claim. A successful mediation is where everyone leaves a little disappointed with the number they received or paid, but ultimately satisfied that the matter is concluded.
- Practice self care leading up to mediation. This means eat balanced meals in the days leading up to the mediation. Get lots of sleep and drink lots of water. Try to schedule other stressful events for another time so that you only need to focus on one at a time
- Take breaks if needed. You don’t need to be cooped up in the same room all day. If you need to stretch your legs, get some fresh air, have a snack, or lie down in a dark room for a short break, you can. Let your lawyer know where you are going and when you will be back.
Mediation is a useful tool for resolving lawsuits without the uncertainty and expense of a trial. It provides an opportunity for both sides to compromise and reach a resolution. The mediator will facilitate productive conversations with the other side. Your lawyer will advocate for you and provide advice on the reasonableness of the offers to settle. The whole process is voluntary, so if the numbers just are not working for you, the mediation can end, and the lawsuit can continue. Make sure to take the time to prepare yourself for mediation and take breaks if needed throughout the day.
If you have any questions related to this blog post, please contact myself, Victoria Edwards, at victoria.edwards@siskinds.com or a lawyer in the Siskinds Personal Injury department.