When most people think of legal action it’s likely they think of courts and judges.
In fact, these days many legal disputes between people are resolved outside of courts by alternative dispute resolution means such as mediation.
The growth of mediation as a way of solving legal disagreements was an inevitable response to the expense, delays and stress involved in taking a matter to court for judgment.
This post looks at the key benefits of a process like mediation, particularly as it applies to resolving personal injury disputes.
How does mediation work and why is it preferable to going to court?
A dispute resolution process such as mediation is designed to help two parties find common ground by way of compromise to reach an agreement and avoid having to proceed to court for determination by a Judge.
Whereas litigation in the court environment is adversarial by nature, with each party’s legal representatives pursuing, to the best of their ability, a ‘win’ for their client and a loss for the opponent, mediation is a more collaborative effort by the opposing parties to negotiate a workable solution they can both live with and move on.
To succeed, mediation requires the participation of both parties in a less formal setting than a court where both are empowered to air grievances, list demands, discuss differences and areas of agreement, and together agree upon terms that lead to a negotiated settlement both parties sign off on.
Summarised, the key benefits of mediation are:
- It’s voluntary;
- It’s confidential;
- It’s convenient;
- It offers the parties greater control over the result, compared with going to court;
- It’s cheaper than litigation;
- It’s faster than litigation.
Mediation is now used for a wide variety of disputes, from family law matters to property settlements, commercial disputes and personal injury matters.
Mediation in personal injury
In personal injury compensation claims, mediation will generally take place between the injured person making the claim and the insurance company, or their legal representative.
While in some other areas of law, the presence of lawyers is not always helpful to the mediation process, in personal injury matters it is advisable because of the disparity in power between the insurance company and the injured individual or individuals.
Using this dispute resolution process for personal injury claims brings unique challenges.
Firstly, it’s important that both parties to the mediation are in full possession of all the evidence in the case through disclosure. Trying to negotiate a settlement of the claim when one party is not fully aware of all the information is likely to result in mistrust and accusations of bad faith.
Another potential obstacle to successful mediation is conflicting opinions of experts, such as the injured person’s medical assessment being substantially different to another assessment arranged by the insurer. Overcoming these conflicts can be a huge challenge in mediation without the authority of a judge to make decisions. A common solution to this problem is to acknowledge the conflict and put it to one side while other differences are narrowed in the search for a negotiated settlement.
The other common challenges to dispute resolution in personal injury are one or both of the parties having unrealistic expectations about the result that can be achieved, or either party being too inflexible when it comes to compromising to reach a settlement. Mediation will always involve some give-and-take in order to be successful.
One of the keys to successful mediation is preparation. Ahead of the session or sessions, both parties should try and establish what they wish to discuss, what they are prepared to accept and what they are prepared to give up.
This will sometimes be achieved by a pre-mediation exchange of documents in which each party sets out a checklist of the key issues in dispute – where there is an agreement, where there is dissent, and what outcome each would be happy with.
How compensation professionals can help
BPC Lawyers has extensive experience conducting mediation with insurers and defendants’ legal representatives on behalf of its personal injury clients.
We understand the importance of the points raised in this post. Preparation includes fully briefing a person making a compensation claim on what to expect from the mediation process, as well as ensuring all relevant evidence is collected and presented on the day.
We will help you through the sometimes difficult final stages of negotiation to ensure your interests are protected and you receive the best possible result.
Mediation is generally quicker, cheaper and involves less stress than seeking judgment in a court, while still allowing an injured person to achieve a successful settlement.
Call us Personal Injury Lawyers Sydney today if you’d like to know more about mediation and your personal injury claim.