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Trial or Mediation for Personal Injury After a Car Accident

Lawyers are often asked: “Will I need to go to trial in my personal injury case?” The answer depends on several factors, including the severity of your injuries, any disputes about liability (who caused the car accident), and whether the insurance company is being unreasonable.  


There are some personal injury claims where settlement is just not possible, and the case must proceed to trial to obtain proper compensation. That being said, in the majority of personal injury claims, a fair outcome is reached without the need for a trial. Mediation is often the key that leads to resolution in those cases.  


Car accident lawyer

In today’s article, we’ll have a look at the important role that mediation can play in the personal injury claims process.  


What is mediation?  


Mediation is an alternative dispute resolution method. It’s used in a wide variety of lawsuits, including personal injury claims, to resolve disputes and achieve settlement outside of a courtroom. The goal of mediation is to iron out factual disputes, explain legal positions, and explore settlement options.  A mediation session usually takes place over the course of a single day.  


What does the mediator do? 


At a mediation, a neutral person called the mediator meets with the parties to the lawsuit and their lawyers to talk about the issues. The mediator’s job is to facilitate discussions and negotiations among the parties. All discussions, proposals, positions, and settlement offers at the mediation are confidential. If settlement is not reached at the end of the mediation session, the mediator does not get to decide issues for the parties or impose a settlement (unlike a judge or jury at trial).  


Will the person who caused the accident be at the mediation?  


Not necessarily. The parties present at a personal injury mediation are usually the mediator, the plaintiff (the injured person), the plaintiff’s personal injury lawyer, an insurance adjuster (a representative of the insurance company who has authority to settle the claim), and the insurance company’s lawyer. The defendant—that is, the person who caused the car accident—is not usually present.  


Is mediation mandatory following an Ontario car accident?  


If your personal injury lawsuit is brought in Toronto, Ottawa, or Essex County (Windsor area), then meditation is a mandatory. In those regions, mediation is imposed by Rule 24.1 of Ontario’s Rules of Civil Procedure. Mandatory mediation must take place before those cases are allowed to be scheduled for trial. 


In all other regions of Ontario—including Sault Ste. Marie, Elliot Lake, Blind River, Thessalon, Huron Shores, Wawa and all surrounding areas in Northern Ontario—motor vehicle accident mediation is optional.  


Car accident lawyers frequently recommend mediation, even where it’s not mandatory.  The process for initiating the mediation process in a car accident claim, which is set out in s. 258.6 of Ontario’s Insurance Act, is simple. Either the plaintiff or the defendant in a car accident claim can send a notice to the other party requesting that mediation take place. If a party fails to comply or participate in the mediation after receiving that notice, the court can consider that failure in awarding costs.  


What happens if we don’t settle at mediation? 


Mediation is never a waste of time. Settlement may not be reached at mediation, but you will still benefit from going through the process. First, you will have had the opportunity to air your concerns, describe how the car accident has impacted your life, and explain the full extent of your losses. You put a face to your case—you aren’t just another insurance claim or a file number! Mediation is less formal than a trial; it provides an opportunity to speak freely if you are comfortable doing so, which can be very empowering.  


Second, you will leave with a better understanding of the defendant’s case and the insurance company’s sticking points:  


  • Are they hung up on your future wage loss claim?  

  • Did they balk at your claim for future care costs?  

  • Do they think your injuries are much less severe than they really are? 

  • Does the insurance company blame your current issues on a pre-existing injury or medical condition instead of the car accident?  


After leaving the mediation, you can work with your personal injury lawyer to build and strengthen those aspects of your claim. You and your lawyer can strategize, gather additional evidence, and/or hire medical experts or other experts to push back against the insurance adjuster’s misconceptions or unreasonable views of your case.  


Third, it’s also very common for claims to settle after mediation but before trial. Each party hears the other side’s case at mediation and explores options for achieving a fair settlement. Once the cards have been “laid on the table” so to speak, the parties can continue negotiating through their lawyers after the mediation session has ended. Another mediation session can be scheduled if the parties think settlement is possible.  


If trial ultimately proves necessary, you will be in a much stronger position heading into it. You and your personal injury lawyer will have refined your case throughout the mediation process and gained a better understanding of the defence case. You may have reached settlement on some, but not all issues, which will reduce the length of the trial (saving time and money).  


Explore Your Legal Options With Our Car Accident Lawyers  


If you or a loved one has been injured in a car accident, ATV crash or another traumatic incident, don’t hesitate to contact the lawyers at Feifel Gualazzi.  


Our experienced team has successfully helped clients obtain full and fair compensation for whiplash, psychological and catastrophic injury claims. We can provide you with a free case evaluation, help you explore your legal options, and work hard on your behalf to get the compensation you deserve.  


Contact us today for a free consultation with an experienced personal injury lawyer.  

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