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What is Mediation in a Personal Injury Case?

I love to litigate.

Why? As a trainee and then a newly qualified solicitor my supervising partner told me this: “Litigate to negotiate”.

She was 100% right. To get the best settlements for clients in my field of personal injury it is important to litigate cases early and hard.

That does not mean being unreasonable with my opponents but using the court rules to my client’s advantage to put my opponents on the back foot. Thereby getting them to the negotiating table sooner.

I have always been a firm believer in a cards on the table approach and that myself and my opponent should have a mutual respect for one another. We are both have the same aim, to conclude the case.

We have slightly differing objectives: I am trying to secure the maximum compensation to which my client is entitled, which will enable them to get their life back on track. My opponent’s job is to pick holes and weaknesses in my case and to reduce the amount of compensation available.

As experienced litigators we each know where the areas of weakness are on both sides. This is why we often reach a compromise by negotiation that both sides are happy with.

Ultimately, if we go to court a Judge will decide on the merit of our arguments.

Under the Civil Procedure rules the parties are required to make every effort to settle a case before any trial. This is by discussion or negotiation (such as a round table meeting or settlement conference) or indeed a more formal process such as mediation. The Court has to be informed as to what steps have been taken to try and settle a case early on because that will save costs, Court time and Court Hearing fees.

In fact the Court can invoke costs sanctions if the parties refuse to settle

If attempts to settle that fail then the parties continue to follow the steps needed to ready the case for trial.

This can be extremely time consuming and costly and take a long time ( in part) due to the current backlogs in the court part due to the pandemic.

What are the alternatives?

The courts are keen and have been for some time that all parties attempt Alternative Dispute Resolution (ADR) and Mediation is becoming more popular as a method of resolving what can be costly and time consuming litigated disputes in the personal injury field.

With Covid-19, the horrendous backlogs in the Court and the advent of online trials, Mediation is something which is more focused in litigator’s minds. Even for those of us who love to litigate.

Advantages

  • It is mutual forum ( the parties have all agreed to it).
  • Decisions tend to be final and cannot be appealed.
  • The Proceedings are confidential.

Disadvantages

  • The decision is binding so there are very little avenues for appealing an erroneous decision.
  • Standards are less clear as the moderator can take into account apparent fairness alongside the law.

Mediation requires a high level of co-operation between the parties, something which is already present in the litigation world.

Mediation is not that different to how I have run my own practice for over 20 years and it has the potential to avoid long and protracted legal arguments, and going to and from the court for decisions. Ultimately lead to quicker resolution of complex cases which can only be a good thing for an injured client.

So while I do love to litigate, I do see the benefits of Mediation and over the coming years maybe I can learn to love that too.

If you have suffered an injury due to somebody’s else negligence, you may be entitled to compensation. For a free consultation with our specialist personal injury solicitors please call us today 0808 252 5231 or request a call back online.