LEGAL ISSUES FOR THE INJURED AND PEOPLE WITH DISABILITIES
210 - 900 Howe Street
Vancouver, B.C., Canada V6Z 2M4
telephone: (604) 602-1040
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WHAT IS MEDIATION?
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
WHO, WHERE, WHEN, HOW & HOW MUCH
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 mediation...by serving
them with a Notice to Mediate.
PROS AND CONS OF MEDIATION
? 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.