If you’re involved in a lawsuit—especially a personal injury claim—you may be asked to attend a personal injury mediation before trial. This post explains what typically happens during mediation, how settlement offers often move back and forth, and two real-world examples of how mediation outcomes can differ.
Mediation is an opportunity for the plaintiff and defendant to meet with a neutral third party (the mediator) to try to resolve the case without going to trial.
What Typically Happens at a Personal Injury Mediation
While every file is different, most mediations follow a similar structure:
- the parties’ lawyers (usually but not always) give opening statements;
- the mediator says a few words about the process;
- the parties go into separate rooms; and
- the parties then exchange offers and messages through the mediator.
During the day, the plaintiff’s offers often decrease over time and the defendant’s offers often increase over time. The goal is to see whether the parties can reach a settlement; if not, the mediation ends and the lawsuit continues.
Before mediation, your lawyer will usually discuss possible trial outcomes and provide guidance on the potential value of your case. It’s often impossible to predict the exact result after trial, so counsel may discuss a reasonable range of outcomes to help you evaluate settlement offers.
Case Study #1: Accepting a mediation settlement even when the offer is low
Going into a recent mediation on an Ottawa case we were on very solid ground. Liability on the Defendant was obvious. Despite a very good recovery, my client’s injuries were frank and indisputable (broken leg).
The Defendant’s final offer at mediation was about 25% lower than what I thought the case was worth on the low end. My recommendation was that the client decline the offer and we keep the case moving forward.
Despite my recommendation, the client was happy with the Defendant’s offer and wanted to accept it to end the case – so we accepted the offer on the client’s behalf. The case settled that day and the client was pleased with the result.
Case Study #2: Declining the mediation offer and settling later for more
At another mediation on a long-term disability case in Renfrew County, the Defendant offered to settle the case at a number I thought was reasonable.
The client had stopped working because of serious injuries they sustained in a car accident. The Defendant LTD carrier took the position that the client could still work.
I also thought the client could do better if we pushed the case forward, but there certainly weren’t any guarantees that the client could do better, or that the mediation offer would stay on the table.
I shared this with the client and they instructed me to decline the offer and move the case forward anyway. We were able to settle their case for a higher amount several months later.
Key takeaways about mediation and settlement decisions
- Mediation is a structured negotiation with a neutral mediator; it is not a trial.
- Offers change throughout the day –with both parties usually coming closer together
- Accepting or declining a settlement is always the client’s decision—your lawyer’s job is to advise and explain potential risks and benefits of accepting or not accepting any offer
- Not settling at mediation does not automatically mean your case is going to trial next.
Our job at a mediation is to make sure the mediator and other parties understand your position and to give you guidance about the offers being exchanged. Sometimes we can resolve your case at a mediation and sometimes we can’t. While settling a case at mediation is nice, not settling is OK too. Just because you don’t settle your case at mediation does not mean you’re going to trial.
Accepting any settlement (at a mediation or not) is ultimately the client’s decision. We’re in the business of client satisfaction. If our client is happy with a settlement, so are we. Similarly, if our client wants to turn down a settlement and move a matter forward, we’re happy to do that too.
FAQ: Common questions about mediation
Do I have to settle at mediation?
No. Mediation is voluntary in the sense that you do not have to accept an offer. You can end the mediation without a settlement and continue with the litigation process.
What should I expect during a mediation?
You should expect private discussions with your lawyer, separate rooms for each side, and back-and-forth communication through the mediator. The day often involves lots of waiting while the mediator speaks to the other side.
How long does mediation take?
Some mediations end with in minutes, while others can take most of the day. Timing depends on how far apart the parties’ positions are, how quickly offers move, and whether either party ends the day early because initial offers suggest a settlement is out-of-reach.
What happens if we don’t settle at mediation?
If there is no settlement, your case usually continues toward the next litigation steps (for example, setting a trial date, pre-trial, or trial), depending on where the file is in the process.
