Imran Salim, Senior Solicitor at Optimal Solicitors, considers the benefits of mediating a high-value/complex personal injury claim-whether a serious road traffic accident, accident at work or a medical negligence matter.
Many people may think that once a claim is made, either it can only be settled by the parties’ legal representatives or the claim has to go to Court and be decided upon by a Judge. If a case does go trial, this will often be several years after the accident. Clearly, this can be a long and stressful time for clients. Quite often, no agreement can be reached between the parties’ legal representatives. In such circumstances, going all the way to trial is not the only option.
Mediation is something that the parties are required to consider. The law requires the parties to think about how a claim might be settled without the need to go to a trial. Taking a matter through Court should be a last resort. The parties should look to co-operate, engage in discussions and try to come to an agreement that avoids trial. Sometimes, the parties are so entrenched in their positions that it becomes impossible to make any headway.
What does a mediator do?
A mediator is an independent person, who can be appointed by the parties, to arrange a meeting, to try and facilitate settlement. Settlement can take many forms. For example, a case might be extremely difficult. It may be that those risks mean that going to trial is not something that a party wants to do, but are finding it hard to see a way out without having to pay costs. Settlement might mean that the claim is withdrawn without having to pay the costs of another party. It might take the form of a reduced award. For example, on a 100% basis, a claim might ordinarily attract the sum of £100,000 but because there are serious risks with the claim, settlement might be reached at 50%, ie £50,000.
A mediator arranges a meeting with the parties at a neutral venue, talks things through with both parties and tries to assist them in reaching a conclusion that is acceptable to both parties.
What are the advantages of a mediation?
A mediator is skilled at taking the heat out of a dispute. The parties may mistrust each other or their legal representatives might not get on very well. Legal representatives are there to best protect the interests of their clients and often, this can lead to heated exchanges. Communications through an independent person can avoid friction. Some things can be kept confidential with the mediator and not relayed to the other party. Such information might be useful to the mediator in terms of his understanding of the dispute. If the mediation is successful for you, it means that you might receive compensation earlier than otherwise. You would not have to go all the way to a trial. You are likely to save on legal costs. Mediation is cheaper than going all the way to trial. You avoid the stress of going to trial as do any witnesses in support of your claim. You can take an active part in discussions.
Settlement can often involve more than just compensation. For example, in a medical negligence claim, you might receive an apology from the Hospital Trust and assurances that they will do their best to ensure that something similar does not happen again.
Mediation enables a party to have a face to face discussion with the other party-to explain to them how the accident has affected them. Often, this can have a powerful effect.
Parties can be subject to costs penalties if they fail to engage in what is called “alternative dispute resolution”, ie actively considering whether a matter can be explored in a way that avoids Court expense and time.
Mediation has a high success rate in terms of settling disputes. Even those cases that are not settled at a mediation can often be settled shortly after because the mediation will likely have helped to narrow any areas in dispute.
If you are considering mediation, please contact us to see how we can help you.