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What is Mediation? Will My Case Be Mediated?

Updated: 4 days ago

Mediation is the process through which parties attend with a private Mediator to attempt to resolve an action. All experienced personal injury lawyers in Ontario have attended Mediation and have mediated many of their Plaintiff’s cases to a successful conclusion.


Mediation Briefs Exchanged In Advance


Comprehensive mediation briefs are exchanged prior to Mediation. Mediation briefs should contain all relevant medical information and a narrative outlining the theory of the Plaintiff’s case and how the Plaintiff’s injuries have impacted his or her life. Similarly the Defence will file a responding brief containing medical and other evidence,  sometimes surveillance, of which the Plaintiff may or may not be aware. Ideally, the parties will have obtained relevant expert reports including medical and accounting reports for the purpose of quantifying damages (ie… the value of the case). In most cases, it will be difficult to determine the value of the Plaintiff’s case without expert reports so these should be obtained well in advance of mediation.  


The exchange of mediation briefs enables the parties to prepare to discuss the most relevant and contentious issues at the Mediation.


When Does Mediation Occur?


Mediations will typically not occur at the early stages of a lawsuit. Parties must first investigate the claim, issue and exchange pleadings (Statement of Claim and Statement of Defence), exchange productions, complete discovery examinations, complete undertakings (additional requests for productions made during discovery examinations), complete any required motions, and schedule medical assessments and obtain expert reports in advance of a Mediation. Mediations require significant preparation and proper preparation takes time.




Also, the parties can engage in informal settlement discussions at any point throughout a claim and Mediation is not the only chance to settle a claim.


Method of Attendance and Who Attends?  


Since Covid, Mediations have taken place over Zoom, although all Mediations were in-person prior to Covid. Some parties have returned to in-person Mediation however most Mediations continue to occur on zoom given its convenience.   


The Defence lawyer attends with an insurance adjuster who represents the defendant’s insurance company and decides what types of offers to make to the Plaintiff. The adjuster will unlikely have met the Plaintiff personally until mediation.  A Mediation is an opportunity for the Defence lawyer and insurance adjuster to see and speak to the Plaintiff directly. Plaintiff’s Counsel and the Plaintiff will also have an opportunity to speak to the Defence lawyer and insurance adjuster.  For this reason, it is important to prepare the Plaintiff for Mediation beforehand and after Mediation briefs have been exchanged. This also enables the Plaintiff and Plaintiff’s counsel to highlight and correct any factual inaccuracies in the Defence brief.


The Process from the Pre-Mediation Meeting to Mediation


The pre-Mediation meeting with a client is an excellent time for an experienced personal injury lawyer to review the evidence with the client and to focus him or her on the issue of damages – how much the file should settle for, what the opening offers should be, and arrive at a goal as to where the Plaintiff should expect to end up at the end of the day.


At the Mediation, the Mediator will make a short introduction. The Plaintiff’s lawyer will then make opening remarks and advance the theory of the Plaintiff’s case or “the Plaintiff’s story.” The Plaintiff may also choose to address the Defence lawyer and insurance adjuster and this practice should be encouraged where appropriate. The Defence then makes responding remarks and the insurance adjuster may address the Plaintiff directly.  Note that the at-fault Defendant does not usually attend Mediation but is represented through his or her insurance company.


Mediation is an informal procedure. Typically, the lawyers and mediators are all familiar with one another. The choice of Mediator is agreed to by the lawyers in advance and if settlement results, the Mediation costs are usually paid by the defence.  


The Mediator does not decide upon the settlement amount.  After the openings have concluded, the parties are placed into separate rooms and begin exchanging offers through the Mediator who then carries them back and forth. Good Mediators will also relay comments made by opposing sides on the issues in dispute to contextualize the settlement offers. While the parties are in separate rooms, good Mediators may also provide their own opinions on the case, which provides the parties with an unbiased opinion from someone not personally involved in the litigation. It can be helpful to understand how a party not involved in the case views the issues in dispute. 


Post-Mediation


If Mediation is successful, the Plaintiff will sign a settlement release prepared by the Defence lawyer and then settlement funds will be advanced in the ensuing weeks. The case will be over.


If Mediation fails, it means that the parties could not reach an agreement on the appropriate settlement figure and the case will proceed to trial. In some jurisdictions, like Toronto, Mediation is mandatory, however, the district of Peel is not one of them.



Mediation has the advantage of allowing the parties to resolve their own claims rather than leaving the case to be decided by six jury members or to a judge who may or may not have experience in personal injury litigation. The parties lose all decision-making control as to the outcome of the case if they proceed to trial.


Mediation is not the only and final opportunity to settle a case. Parties can theoretically engage in settlement discussions at any time whether it be before or after Mediation. After a failed Mediation, the parties will appear before a judge at a pre-trial conference, which is another opportunity for the parties to meet face to face (on zoom) and try to settle the case.


While parties have the ability to engage in settlement discussions at any time, the significance of a Mediation in resolving a claim should not be overlooked. The Mediation provides busy insurance adjusters, who have coverage of many files, the opportunity to focus exclusively and intensively on the Plaintiff’s case. Parties who voluntarily agree to attend Mediation often do so with a goal to settle the case. As such there is often good momentum towards settling a case at Mediation. For this reason, experienced counsel will prepare tirelessly for Mediation, as it is often the best chance to settle their client’s case.


If you have been injured as a result of the negligence of another individual, call Hillier & Hillier at 905 453 8636 for a free consultation.

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