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MEDIATION Powered By Docstoc
					                                                               LEGAL ISSUES FOR THE INJURED AND PEOPLE WITH DISABILITIES

                                                                                                                                                                                                                                         210 - 900 Howe Street
                                                                                                                                                                                                                                         Vancouver, B.C., Canada V6Z 2M4

                                                                                                                                                                                                                                         telephone: (604) 602-1040
                                                                                                                                                                                                                                         facsimile: (604) 602-1030

         ost lawsuits never go to trial. Instead,                                                In a mediation, as with other forms of negotiation                                              often, but doesn’t have to be, a lawyer. Their role is
         lawyers on both sides usually gather                                                    outside a courtroom, lawyers from both sides will                                               to facilitate the discussions and ensure that when
         evidence and then negotiate a settlement                                                try to hammer out a deal that their clients can live                                            the parties get into areas of major disagreement,
 out of court. Mediation is a formal procedure                                                   with. The unique aspect of mediation is the                                                     they keep talking to each other.
 designed to help that out-of-court process along.                                               involvement of a mediator, a neutral person who is

            ho - Normally the plaintiff and his/her                                              are ready to settle - e.g. they have collected all of                                                    discussed is to be kept confidential. This is to
            lawyer, and the defendant (or key                                                    the evidence they need to assess both liability and                                                      encourage the parties to be frank and open
            person from the insurance company if                                                 damages. But mediations can also be tailored to                                                          with each other in their discussions;
 the case is being defended by an insurer) and their                                             settle only one aspect of the lawsuit, such as                                                  !        the mediator cannot be called at trial as a
 lawyer, attend the mediation.                                                                   liability, with the rest of the suit to be settled or                                                    witness to anything that took place, or was
                                                                                                 litigated separately.                                                                                    disclosed, in the mediation;
 Other persons (e.g. the plaintiff’s spouse or close                                                                                                                                             !        the mediator is not to act as a judge or lawyer
 friend) can attend for some or all of the mediation.                                            In 1997, in some areas of B.C. and with some                                                             and can neither force a party to take any
 Sometimes, independent witnesses may be put                                                     types of claims, new Regulations allowed parties                                                         particular position, nor give legal advice;
 on standby to give useful information in the event                                              to force the other side to participate in a mediation                                           !        if the mediation does not end up in a
 their evidence is key to the issues in dispute.                                                 (though not to settle), by serving them with a                                                           settlement, the parties can proceed to trial.
                                                                                                 Notice to Mediate. In 2001, this right to compel a
 Where - The meeting place is a neutral location                                                 mediation was expanded to all of B.C..                                                          How much - The costs of mediation range from
 agreed to by both sides, often a boardroom with a                                                                                                                                               approximately $500 to $2,500, depending on the
 single table and chairs. If the parties have                                                    Once a mediation is scheduled, it will be on a                                                  amount of time spent in the mediation, the number
 difficulty dealing with each other, or when one side                                            specified date and usually (in personal injury                                                  of parties, and other factors.
 needs to discuss matters just among its members,                                                claims, at least) last half a day to a whole day.
 a mediator will offer a separate room and may act
 as a go-between with various offers and                                                         How - At the beginning of
 issues/information.                                                                             the mediation, the mediator
                                                                                                 will explain the “rules” of                                Parties [may] force the other side to
 When - Mediations can be held at any time, but it                                               mediation:
 makes most sense to hold them when the parties                                                  !    everything that is                                    participate in a serving
                                                                                                                                                            them with a Notice to Mediate.
 PROS                                                                                                                                             CONS

 ? can force each side to organize and prepare their cases earlier, exposing                                                                      ? can   overwhelm, intimidate, or demoralize vulnerable plaintiffs if not
     weaknesses that need additional attention                                                                                                       carefully handled

 ? can deflate unrealistic expectations by bringing out each side’s strengths                                                                     ? may be a waste of time and money if one party is not prepared to negotiate
     and weaknesses                                                                                                                                  in good faith

 ? can save the time and expense of going to trial                                                                                                ? can pressure a person to make a bad settlement, especially if that person’s
                                                                                                                                                     lawyer isn’t fully prepared with all facts, arguments, and a “bottom line” from
 ? can avoid potential devastation for the party or person with the greatest                                                                         which he/she will not renege without very good reason
     amount to lose at trial should a trial judge or jury prove unsympathetic
                                                                                                                                                  ? because compromise is at the heart of a successful mediation, the plaintiff
 ? can encourage settlements because of the time, money, and effort each                                                                             inevitably comes down from his/her starting offer, and the defence inevitably
     side must invest to arrive prepared; and the emotional pressure to “hammer                                                                      goes up from their starting offer. The ultimate settlement being so far from
     out a deal” as the mediation day wears on                                                                                                       an “ideal” result can leave both sides walking away unhappy.

 ? working out a settlement may give more feelings of empowerment than the                                                                        ? may be an unnecessary expense, since many cases can be settled simply
     formal dictates of a trial would provide                                                                                                        with phone calls, letters, or informal meetings.

              ourts have been bogged down by the                                                 have increased. For an increasing number of                                                      Expect to see its use continue to grow.
              numbers of cases asking to be heard, so                                            legislators, lawyers, insurers, and plaintiffs,
              alternative methods of dispute resolution                                          mediation obviously fits the bill.

This newsletter is for informational purposes only and its contents are not intended nor should be considered to be legal advice. To request additional copies, remove yourself from my mailing list, suggest future topics, or express any other concerns, please call/fax/write/e-mail me
at the numbers or addresses listed above. ‘ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities’ is written and produced by Faith Hayman, Barrister and Solicitor.