Originally published on OBA.org on November 02, 2023. Republished with permission.
Personal injury cases involving catastrophic injuries can be some of the most hotly-contested actions in this field of law – and it’s little wonder why. Significant amounts of money – sometimes millions of dollars – are often on the line. For the plaintiff, the outcome of their case will have a critical impact on their quality of life going forward. For the defendant and their insurer, the sum paid out may be significant and is not approved without much thought.
Since most civil cases settle before trial, a mediation session where the parties are brought together to negotiate with a neutral third party can be the pivotal moment in proceedings. In this article, I offer some thoughts on how to effectively mediate catastrophic injury cases. I explain some considerations for the parties to assess prior to the mediation and outline some suggestions for how to handle the day of mediation.
TAKE THE TIME TO GET THE TIMING RIGHT
For some claims, there is value to holding an early mediation. But for catastrophic injury cases this is usually not advisable.
The complexity of these cases (debates over liability and causation, multiple parties named in the suit, and the need for multiple expert reports) does not lend itself well to mediation before all relevant medical assessments are conducted and complete financial information about income loss and future cost of care is gathered. Deciding which experts to retain and ensuring the mediation date provides ample time to compile and analyze this evidence will prevent a premature discussion with lower odds of reaching a settlement.
In the event there is an issue with the Accident Benefits claim in addition to the tort claim, it’s generally advisable for both portions of the case to reach a similar stage of progress before scheduling the mediation. It’s essential for a full accounting of what has been paid out by SABS to date, and to determine whether the caps on particular benefits in SABS are expected to be exhausted.
All defendants should have a good understanding of their exposure. In the event of multiple defendants, a pre-mediation defence-only session may be beneficial to determine if there are intra-defence issues which could prove an obstacle to settlement talks. Time may be needed to iron out these challenges prior to the mediation. Another option is to schedule the mediation to take place over consecutive days so these issues can be dealt with appropriately.
Finally, while parties may be holding back key pieces of evidence that will bolster their case at trial (or influence the amount they are willing to offer/accept during negotiations), revealing this information at the mediation could work against the chances of reaching a settlement. This information is best revealed prior to the mediation because it may change the plaintiff’s calculations about what settlement they would be willing to accept or push the settlement discussion beyond the amount the defendant insurance rep has authority to offer.
Similar issues can occur if there are unexpectedly high disbursements or late expert reports. When planning the mediation date, ensure that sufficient time is permitted for exchange of this type of information – at least two months in advance.
WORKING WITH THE MEDIATOR
Taking time to consider who to select as a mediator and how many hours or days to reserve for the mediation is also important. Although all trained mediators bring a standard skillset to the table, choosing a neutral facilitator who has experience with complex medical and/or legal issues, multi-party negotiations, and reviewing and making sense of shifting calculations over heads of damage can be a critical factor in successfully managing a catastrophic injury mediation. Ideally you will also choose a mediator who can add value by testing your assumptions and posing questions that assist your negotiations.
Whether or not you’ve had previous experience with the mediator the parties have selected, it is always a good idea to take advantage of pre-mediation communications to get a sense of the mediator’s process and to develop a sense of trust in them and confidence in their skills. Deciding whether to share confidential information with the mediator is an important consideration when planning your negotiating strategy.
An experienced mediator can provide an objective opinion or assessment of the relative strengths and weaknesses of your case that may help as you decide on your maximum/minimum settlement numbers. Moreover, if you share confidential information with the mediator that has a bearing on why you have a certain settlement range in mind, the mediator can find ways to communicate with the other parties about why you are making or rejecting certain offers without revealing information that you do not want to disclose at that point in the negotiations.
Sufficiently planning, designing and preparing for a mediation for catastrophic injury cases is frequently the secret ingredient to a successful mediation. Set yourself up for success in advance.
Whether you’re counsel (for the plaintiff or defence) or an insurance representative, you will likely be communicating with your client or claims management throughout proceedings. As you approach mediation, it is especially important to prepare them for how the day is expected to unfold and how you will manage any surprises.
In catastrophic injury cases, the plaintiff may want/need family members, caregivers, or legal/property guardians to be present at the mediation (whether in person or through videoconferencing). Everyone planning to attend must be aware of their role and, if there are many people, how participation will be managed to keep things on track.
Determining what the plaintiff wants out of this process is important. (S)he, or the substitute decision-maker, will ultimately decide whether to accept a settlement. If the plaintiff wants/needs an opportunity to be heard or make a statement about how the injury has impacted them, facilitating this should be in everyone’s interest. It is best to decide this well in advance of mediation and have some remarks prepared. Personal injury suits can be highly emotional situations for the plaintiff. If a settlement negates the need for their “day in court,” that experience should be incorporated into the mediation. One of the best things a mediation can do is give a plaintiff voice and an opportunity for closure.
Furthermore, anyone else who may be needed to reach a settlement should be present or reachable. For instance, in catastrophic injury cases, structured settlements are common, and required in cases involving minors. The plaintiff and their advisors should be put in touch with a structured settlement specialist in advance to help them determine what they will need for future costs of care. That specialist may need to be present at the mediation or reachable to update calculations as various settlement offers are proposed.
STRATEGIES ON THE DAY OF MEDIATION
Everyone will have their own plan for how to present their case and make offers or counteroffers. Giving the mediator some insight into your plans prior to the mediation or as your caucusing can be important for keeping everything on track. People can interpret offers or statements much differently than you might anticipate. Therefore, apprising the mediator of what you want your actions to say can help the mediator ensure your message is not lost in translation or that the wrong signals are sent.
Be mindful of time as you work through offers. While a ticking clock can often focus minds, as pressure builds, it can also create additional stress in an already stressful situation. If a settlement is looking promising but not quite within reach by the time the mediation is scheduled to end, ask whether the mediator and other parties would agree to extend the time if they are able, or plan for additional post-mediation negotiations with the mediator.
Catastrophic injuries tragically alter a person’s future. Catastrophic injury lawsuits offer that person an opportunity to secure their financial future, obtain a sense of justice if another person’s negligence caused or contributed to their injuries, and find closure that will help them to move on with their life.
When the stakes are this high, good preparation and planning are essential to maximize the possibility of an acceptable outcome. By considering some of the suggestions in this article, you and/or your clients can take steps to set yourself up for a successful mediation and resolution to the claim.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at email@example.com or by telephone (647) 250-7216 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/calendar-2/ or contact Lacey Day at firstname.lastname@example.org or (647) 250-7216.