Achieving Success in Mediating Catastrophic Injuries

  • 02 novembre 2023
  • Marshall Schnapp, BA, JD, LLM (ADR)

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.