I saw this story about a Californian personal injury claim being referred to mediation and this one about historic abuse cases being resolved by mediation and decided to ask my colleagues at the American Institute of Mediation why American and Canadian lawyers are so much more likely to use mediation to resolve personal injury disputes than their British counterparts. I have kind permission to quote the contributors to the debate.
Ben Cunningham, Austin, Texas
The bottom line is (as in every mediated settlement) if a settlement is something that the parties on both sides find acceptable in light of the law, facts, economics, and personal situations of the clients, a resolution that provides certainty and finality is more often than not preferable to the toll of on-going warfare (with the factor of lengthy appeals that can take years, which are common in the American system), the expense of experts, depositions, etc., and the uncertainty of outcome. Doing the math, it is often the case that, say, a $75,000.00 settlement to be paid within two weeks of the mediation is preferable to the chance that the plaintiff might get zero or $150,000.00 at a trial, which might be many months away and subject to the appeal process in the event the plaintiff does prevail.
Augustus Richardson QC, Halifax, Canada
Most personal injury matters that aren’t settled by the lawyers end up in mediation. I suspect part of the reason lies in the fact that mediation gives both sides the benefit of an objective outsider’s view of their respective cases–gives the clients (particularly the plaintiffs) a chance to become subjects again (that is, to become active rather than passive participants in the system)–and because it gives both sides a chance to back out out gracefully from positions they may have boxed themselves into.
Ben Cunningham
Mr. Richardson’s comments are perceptive and well stated. First, the value of having a neutral third party with (as we say in Texas) “no dog in the fight” allows the mediator to focus on the actual issues in dispute, the dynamics of providing a platform for the parties to switch from an adversarial mode to an interest-based cooperative paradigm, can empower the parties and counsel to move forward in a more rational fashion. Second, Mr. Richardson is correct: the mediation process is one of the few (if not only) opportunities that the parties themselves (I sometimes refer to them as the “real live humans” in the litigation process) have control over the arc and outcome of their dispute.
Fredrike Bannink, Amsterdam, Holland also joined the debate saying mediators can help clients to understand that no conflict is as simply defined as a matter of dollars and cents. She devoted a chapter on Personal Injury Mediation from a Solution Focused perspective in her recent book Handbook of Solution-Focused Conflict Management
