Originally published in September 2020. Last updated April 2024.
It’s been said that too many cooks can spoil a broth. But sometimes having just the right mix of people present to contribute their input to a collective project can create something special.
In this blog I ask why it might make sense to mediate tort, accident benefits and long-term disability claims together. While there may be good reasons for separate mediations for some cases, I’ve found that for some parties, it makes good sense to get everything on the table at one time.
Think of The Parties Involved
Mediating multiple claims at one time tends to increase the odds of settlement. Why? It comes down to dollars and cents. Think of what each party has to gain by having the full amount of potential settlement money available at one time.
For the plaintiff, having more dollars on the table at one time increases the appeal of settling, underscores the impact of reaching a settlement and likely increases their odds of accepting the (consolidated) offer. It provides an opportunity for closure and to put litigation behind them so they can move on. Moreover, many plaintiffs are not used to being involved in a personal injury matter and dislike the idea that they need to wrangle with insurance providers and hop through legal hoops as they advance their claims. Getting everything out of the way at once may be very appealing to them.
Finally, since Ontario law operates under the principle that double-dipping should not be permitted, if a plaintiff has already drawn benefits (or had the potential to draw benefit) for certain types of damages from one insurer, they are subject to reductions in a subsequent settlement or award by another insurer. A global settlement allows the plaintiff control by having all the information about their claims available at the negotiating table. .
For the defendants, having all the issues being dealt with at the negotiating table at the same time allows them to be able to make a truly final offer. This also provides insurers with control over their budgets in a way that would not be possible if there were multiple settlement discussions, mediations and trials.
How To Make Global Mediations Even More Effective?
In short, global mediations are efficient and often productive for all the parties involved. But, there are some ways to make them even better.
Since there are multiple issues to be discussed and settled, a full day mediation is usually preferable. Moreover, parties must be mindful of the accidents benefits cooling off period and avoid rushing through discussions that may give a plaintiff second thoughts.
A pre-mediation conference may be especially helpful for global mediations. These discussions often provide a valuable opportunity to work through any concerns or preliminary issues that counsel want to discuss to ensure the day is productive.
Are There Drawbacks To Global Mediations?
In spite of these benefits, sometimes the particular mix of parties involved in multiple claims may not find it beneficial to negotiate with a plaintiff together. Personalities of various parties involved may impede the chances of a settlement, as would different negotiating strategies among the defendants and/or insurers. This could be especially true if multiple insurers are responding to the plaintiff’s claims and collateral benefits are at play.
If there are disagreements among collateral insurers about their share of coverage for liability, or a particular and highly technical argument that a collateral insurer may be advancing against the plaintiff, a global mediation session may be thrown off course or get bogged down to the detriment of other issues which could be settled expeditiously.
How To Address Possible Drawbacks To Global Mediations?
These types of challenges are not insurmountable in a global mediation, however. A pre-mediation conference could identify these issues and work with parties to facilitate a mediation that is organized to meet the needs of the parties. For instance, discussions could be had about whether to permit multiple insurers to be present in the same caucus room, to hear offers, or whether to invite a particular collateral insurer.
A Recipe For Success
There is no doubt that for all the benefits of global mediations, managing multiple parties and ensuring timely and clear communication between these parties can be daunting for some mediators who may be unfamiliar with this type of interplay and the resulting complexities.
During my time as an adjudicator, I developed the kinds of skills necessary to delineate complex matters and bring forth the relevant law and considerations. As a mediator, I’ve had the opportunity to use these skills effectively by identifying problematic areas within negotiations, prioritizing areas where agreement is likely, and organizing discussions among multiple parties in ways that make good use of the time available.
It’s true that sometimes too many cooks can spoil a broth and too many parties present at a mediation can become unmanageable or counterproductive without proper guidance. But, with proper foresight and guidance from an experienced mediator, global mediations can make good sense and allow all the parties a chance to create a recipe for a successful settlement.
If you’d like to discuss a matter you have on your docket or have questions about my mediation services, please contact me directly by email at marshall@schnappmediation.com or by telephone (647) 250-7216. Alternatively, please visit my booking calendar at https://schnappmediation.com/booking/ or contact Lacey Day at admin@schnappmediation.com or (647) 250-7216 to schedule a mediation today.
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 marshall@schnappmediation.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 admin@schnappmediation.com or (647) 250-7216.
