Although it is not currently mandatory to attend at a Mediation to obtain a trial date from our courts (it has been mandatory in the past and looks like it will be once again in the not-too-distant future – as of April, 2019), most lawyers in Alberta will recommend hiring an independent Mediator if the parties have been unable to settle your claim through direct negotiation. Most Mediators in Alberta who mediate personal injury claims are retired insurance defence lawyers. The reality is that insurance companies are most comfortable if they are being guided in settlement mediations by a senior ex-defence lawyer (vs. an ex-plaintiff lawyer). There are about half a dozen Mediators currently used in Calgary for personal injury claims. The Mediator should be agreed upon by your lawyer based on your lawyer’s working relationship with the various Mediators. Obviously you will want your lawyer to agree upon a Mediator (with the insurance Defence lawyer) that your lawyer has worked with before and with who your lawyer has had some success.
Typically, mediations are private and cannot be disclosed at a later date (i.e. at trial). Any settlement numbers discussed at a Mediation cannot be referenced at any later hearing or trial (i.e. in the event that the Mediation did not end in a settlement).
The Mediator’s role is to try to work with both sides to see the strengths and weaknesses in their respective cases, with a view to bringing both sides to a number that they can live with. It’s important to ensure that you have a lawyer that is known as a successful trial lawyer. If that is the case, the insurance lawyer and the representative from the insurance company will understand that the mediation is likely their last chance to get a settlement with the Plaintiff without the cost and time expense of going to trial. If your lawyer is not known as a successful trial lawyer, the insurance lawyer and representative from the insurance company might be able to leverage that reality into a poor result for the Plaintiff at the Mediation.
Mediation typically opens with everyone being introduced to everyone else. Typically in the room is the Mediator, the Defence lawyer, the adjuster from the insurance company (this representative from the at-fault driver’s insurance company, and ultimately the person who will decide how much to pay you for your claim), your lawyer and yourself. After a brief explanation of the process by the Mediator, your lawyer will be asked to make an opening statement. Your lawyer will then highlight the injuries you have suffered and outline how your case should be valued. The Defence lawyer will then be asked to make an opening statement. This will typically be along the lines of “This is my only opportunity to speak to you directly. I have a job to do, and I’m going to say things that you may not like. However, you need to listen to what I have to say because if we don’t settle today, the next step will be to have a trial and the judge may like our view of the case more than yours”.
As this is the one and only time that the insurance adjuster will get to see you speak, you want to ensure that you dress as you would for an interview, formal event or going to a place of worship. If you are asked to speak (this is something that you will discuss before the Mediation with your lawyer) you want to be calm and straightforward as you speak about your injuries from the car accident and how they have impacted your life. Once the sides have made opening statements, the Mediator will often have each side go to separate rooms and the Mediator will shuttle between the rooms, identifying strengths and weaknesses to each sides’ case and helping each side make back and forth settlement proposals with the goal of arriving at a settlement number that both sides can live with. This process of shuttling between both sides can last for several hours as the Mediator tries to move the insurance adjuster to pay more and encourage you to accept less. Ultimately the benefit to arriving at a settlement through Mediation is that you keep control of the outcome of your claim (rather than leaving it to some random judge to decide).
If the Mediation is successful and a settlement number is arrived at, the Mediator will send an email or letter to both sides outlining the settlement and typically settlement funds are sent to the Plaintiff’s lawyer within 2 to 3 weeks of the Mediation.
Beware that not all insurance adjusters come to Mediations with reasonable settlement numbers. Some adjusters have the sole purpose of using Mediations to see if the Plaintiff will settle for a very low number. The adjuster may be trying to see if the Plaintiff has the willingness to go to trial (or if the Plaintiff’s lawyer has the experience and skill to go to trial). Even if the Mediation does not end in a settlement, they are useful for gaining a better understanding of the strengths and weaknesses of each sides’ case. With experienced trial counsel, much is to be gained from Mediation even if you don’t reach a settlement.