Every lawyer understands that navigating through the process of a personal injury claim can be stressful for the victim and their family. The amount of emotional pressure he or she (the victim) can experience during the litigation process including mediation and trial can large and can make the victim more vulnerable.
Canadian legal system has put in place legal barriers to recovery on behalf of seriously injured victims, by imposing stringent legal tests, deductibles, and legal criteria for a victim to meet to be able to obtain compensation. Lawyers who specialize in personal injury cases understand the importance of gathering evidence to successfully advance a plaintiffs’ claim through the legal process and to obtain a reach a successful outcome in an efficient and timely manner.
Disputes Handled Through Mediation
Car accident cases often end up in arbitration between the plaintiffs and insurance companies. According to Rule 24.1 of the Rules of Civil Procedure, there is mandatory mediation for case managed civil, non-family actions in Toronto. The Financial Services Commission of Ontario (FSCO), which is the insurance regulator, requires that this comes before trial.
The process is important because matters that are not dealt with here will end up in pre-trial and trial. It is important to have strong legal representation at your corner when attending a mediation with the insurer, to ensure the necessary legal evidence is obtained and teh best possible outcome is negotiated on your behalf.
In the thousands of claims we have taken to arbitration, mediation and pre-trial conferences over the years, we have identified some matters that are commonly disputed. Liability (who was at fault and what percentage of fault should the drivers be assigned) and the value to be awarded for a victim’s damages are commonly disputed by insurers. Other matters that form part of the agenda at a mediation include:
- Causation (are the damages directly or indirectly attributed to the accident or trauma-induced symptoms in question?)
- Calculating loss of income and loss of competitive advantage
- Cost of past and future care needs including treatment and medication
- Cost of attendant care, house maintenance, and housekeeping
- The extent of injuries (do they meet the threshold and if they do, are they catastrophic or not?)
- The Family Law Act claim value
- What Non-earner benefit does the plaintiff qualify for?
- What interest is owned and if any is owed, what rate should be used to calculate the interest?
- Is the tort insurer or the accident benefit insurer entitled to any set-offs and if they are, how much are they entitled to?
- What percentage should co-defendants contribute towards settlement?
How the Mediation Process May Unfold
The mediation process is presided over by a mediator. The insurer will also have a team of lawyers and adjusters present. Some mediation sessions have multiple parties involved and especially there are multiple plaintiffs, multiple defendants, and third parties. Having an experienced lawyers who have handled many mediations involving complex disputes representing you in this process is crucial for successful outcome for the victim.
Car injury claims are time-bound to meet strict legal timelines including deadline to file a claim, conduct mediation and to set a matter down for trial. It, therefore, follows that most victims will find themselves at a mediation in a short timeframe after an accident. Victims and insurers will not want to wait for years to allow the claim and injuries to fully materials. An experienced lawyer will be able to gather legal evidence including expert reports and future care analysis reports to extrapolate a victim’s future losses and prove their claim. As an innocent victim, you will have done nothing wrong, but you will still be put to the task to prove your claim.
In the entire process, the insurer will dig deep into your past to expose your past health problems, your driving record, and any character flaw and demons that you may have that they may be able to rely on to attempt to discredit your credibility. Some of the personal information that comes out about you will be completely irrelevant, but it will not prevent the insurer from exposing it as they attempt to paint you in bad light.
In most cases, the insurer’s medical expert will argue based on the parameters of the law that your injuries are not as serious and limiting as you claim they are. To counter this, you may need to hire independent experts and serve reports to prove your damages.
It is a legal requirement that you be seen by a qualified medical expert before the pre-trial process. However, insurers will often obtain their expert reports well in advance of a mediation.
There may at times be little follow up assessments by insurer’s doctors or experts, which places greater burden on you to be able to obtain the evidence required to document your limitations and prognosis for recovery.
The outcome of mediation will largely depend on the evidence advanced in your favor to prove your claims.