News and Views It is well established that mediation works in personal injury cases. Why it works is more involved. Ask 10 mediators and you may get 11 different answers! This is my perspective as a full time mediator who has been litigating and mediating such cases for many years.
Mediation works with personal injury cases because:
Flexible
Mediation is a successful process across a spectrum of different types of cases, from low value to mega claims – and although personal injury cases have many unique features experience shows that none of these inhibit the process from working well.
Resolution
Mediators focus on ending the case (on appropriate terms) on the day – and usually this is something the claimant, the claimant’s family and the defendant’s insurer all want. Claimants react to “It’s over” with great relief. Insurers are satisfied with achieving the business objective of settlement.
Neutral
Negotiation often works better with the involvement of a neutral. The mediator can use a number of tools to encourage parties to get to their “best and final” position when otherwise they might have stopped short and made a Part 36 offer. You are more likely to make that final offer if you have an indication it is likely to be accepted.
Detached
Mediation is a useful tool to use where the adversarial process gets quite pronounced. This happens with personal injury claims, not least because of the perpetual costs issues. A skilled mediator can lower the temperature (where it has increased) and work with everyone involved to focus on settlement.
Multi party actions
Quite often personal injury cases involve two or more defendants. It is well established that mediation works particularly well in multi party cases.
Have your say
The process can give a particularly aggrieved or emotional claimant a chance to “get it off their chest” – and doing this at a mediation can be more like a day in court than an actual day in court.
Non-monetary issues
Mediate settlements can involve non legal elements such as an apology, a reference and, in employers’ liability cases, help on HR issues such as re-training or alternative employment. When these issues crop up they are frequently regarded as really important by the claimant.
