This is part 3 in a three part series discussing the process of typical personal injury action.
In this edition,
Step 3 Settlement Discussions / Mediation
After the Questioning has been completed, as well as any defence medical examinations and independent medical examinations, it is common for the parties to exchange settlement proposals. If those negotiations do not resolve the differences between the two sides, often a private mediator is hired by both sides to try and assist them in coming to a resolution. This can be a good way of resolving the claim if the parties are unable to reach a settlement otherwise. Finally, if the mediation fails, the last step would be to set a trial date.
Getting a Trial Date in Alberta
In order to obtain a trial date in Alberta, the government requires that both sides certify that they are ready to go to trial and have done everything that is required to make the case ready for trial. The current wait for trial dates is currently 2-3 years. Unfortunately this is just a reality of the lack of sufficient numbers of judges in Alberta to hear all of the cases that are currently in the system. Most personal injury claims settle either through negotiation or mediation. If they don’t settle, and they are for soft tissue injuries that involve chronic pain, typically the trial would last somewhere between 1 to 3 weeks. Witnesses for the plaintiff at the trial would be : two or three of the plaintiff’s friends or family, the family doctor, the physiotherapist, massage therapist, chiropractor, and the IME doctors that the plaintiff’s lawyer sent the plaintiff to. The Plaintiff might also have a Vocational Expert (to talk about retraining), a Functional Capacity Expert (to talk about what the plaintiff can push, pull, lift, etc.), a Cost of Care Expert (to talk about what is needed in the future to manage the chronic pain or ongoing symptoms), and an Economic Expert (to calculate the past and future loss of income or income-earning capacity). On the other side, witnesses for the insurance company would typically be the defence medical experts that examined the plaintiff. One major downside of taking a matter to trial is that you leave the outcome of your case in the hands of someone who does not know you and you lose control of the outcome. In addition there is no requirement for the judge to provide a decision at the end of the trial. Indeed, it is not uncommon for some judges to provide the final decision 1 to 2 years after the trial! Having said all that, it is important to, “say what you mean, and mean what you say”.
If you are too far apart from the other side in terms of settlement and you have a strong case, then you have to be prepared to go to trial. In those circumstances, you definitely want an experienced lawyer who has been there before with proven success.
Something to think about when choosing you personal injury lawyer in the first place.