Mediation is an amazing opportunity to settle your Ottawa personal injury action – Ottawa Ontario accident and personal injury lawyer discusses the effective use of mediation to resolve personal injury claims.
One of the most important steps in the litigation process is mediation. As a mandatory court connected means of resolving some or all of the issues in a court action, mediation has proved extremely successful in resolving accident, insurance and injury claims. For lawyers, mediation is a very good opportunity to present their excellent advocacy skills and to effectively present an injured client’s case by making submissions in the opening statement of the mediation and resolving the issues through the use of their skills throughout the mediation process. However, in order to be effective as an advocate for an injured person at a mediation, the injury lawyer requires certain skills including the ability to summarize the case succinctly and effectively, briefly comment on the applicable law and apply those legal principles to the specific facts of the case, all any non-confrontational and professional way. In order to be effective, the lawyer must know the case extremely well and be very familiar with the applicable law and the facts of the case. The Ottawa injury lawyer should focus on the parties’ interests and be mindful of the various positions taken by all parties.
The most important document in the mediation process is the mediation brief, in Ontario it is called the “statement of issues”. That document must succinctly state the issues, the material facts, the law and what the client expects to obtain at mediation. The document should address problems in the case and consider the position and interests of all parties. I recommend that the lawyer representing the injured party put forth a good faith, honest and reasonable offer to settle breaking down all of the heads of damages claimed. In addition, the damages claimed should be supported by the material documents that substantiate not only the heads of damages claimed but the amount of the damages claimed.
For the mediator, the first time they will hear anything about the facts of the case is when they read the mediation brief and court pleadings. This mediation brief document is the document that the mediator will read in advance of mediation. While the opposing parties, their lawyers and adjusters may know the case as a result of the exchange of documents in court action and perhaps examinations for discovery having completed, the mediator does not have the benefit of that knowledge. It is therefore important to include all the important aspects and facts of the case in the mediation brief. I cannot overstate enough the importance of the onus being on the plaintiff to prove each element of their cause of action. Accordingly, there is nothing more helpful and convincing than to attach documents that support the case, and in particular support liability and each of the damages claimed.
Also important is not to leave out the human element of the case. Every experienced personal injury lawyer knows that cases may be won and lost based on the theory of the case and how it is presented to insurers, their lawyers, and more importantly to judges and juries. Therefore, it is important to tell a story that talks about the client, the injuries they sustained and the impact on their life and on their family’s life. The use of a descriptive story with reference to the supporting documents will show that the essential elements of the story can be proved either by oral evidence at trial or documentary evidence. Summarizing the evidence that witnesses will give at trial is often helpful. It will paint a picture of what the jury will hear a trial. Also important is to comprehensively describe the total impact on the client’s life resulting from the injuries including the impact on their social, economical and health. The use of demonstrative aids can also assist in demonstrating to the opposing party the seriousness of the injuries sustained. For instance photographs of the injuries in the early stages and as the injuries healed over time can show the level of pain and suffering and injury the client has suffered and demonstrate permanent injuries such as scars or other disfigurements. Whether it is the use of charts, videos, medical illustrations, photos, witness statements or other types of demonstrative evidence, the use of these can often make a powerful and effective impact mediation. In the end, the ultimate goal of presenting all evidence is to clarify a point, often to demonstrate the seriousness of the injuries and the impact on the injured victim.
As a final point, every case has its challenges. One challenge that frequently occurs in injury cases is pre-existing medical conditions that impact on the recovery of the injuries sustained in the accident. It’s important not to avoid dealing with the problems in the case head on. If there are pre-existing medical conditions or behaviours (drug use, alcoholism, etc…), they should be addressed at mediation in the opening statement. The injured person can assist in the opening statement and discuss their pre-existing medical conditions. Having the injured person discuss these issues without trying to minimize it in any way but nevertheless explaining them in an open fashion can give credibility to your client. It’s important to highlight the strength of the case but also to address the weaknesses in the case.
In the end, mediation is an early step in the litigation process that gives personal-injury lawyers a great opportunity to advocate on behalf of their clients. The use of mediation should never be underestimated.
Our Ottawa personal injury and accident lawyers offer free consultations to injured persons and their families and to accept injury, insurance and accident cases on a no fee until you win basis.
Contact any of our lawyers for free consultation at 613-315-4878.
Marc Quinn 613-315-4878 firstname.lastname@example.org
This article is provided for information purposes only and should not be taken as legal advice. Each case turns on their own facts and if you are an injured person, you should consult personal-injury lawyers as possible to know about your rights and interests based on the facts of your case.