Is Mediation An Alternative To Litigation If Settlement Talks Reach Standstill?

Negotiations are the traditional way to settle a personal injury claim. Sometimes the 2 disputing parties reach a standstill. At such times, mediation can serve as a way to keep the process moving forward, without relying on litigation.

Mediation involves reaching a settlement with the help of a mediator.

The mediator facilitates the process, but takes no action. Still, mediators are allowed to make recommendations, and to present each party with the view of the opposing party.

Rules that apply to those that are working with the mediator:

Personal Injury Lawyer in Oakville know that both parties must agree to pursuit of mediation.No statement that has been made by someone that had agreed to take part in the mediated settlement is admissible in court.

Basic process followed in all mediations

The mediator reviews the rules. The plaintiff presents his or her view; the other party and the mediator listen to that presentation. The defendant presents his or her view, while the other party joins the mediator in listening to that presentation.

At that point the mediator gets to make a choice between 2 possible ways to proceed.

–All of those that have heard the presentations could remain at the table, and discuss the issues that have given rise to the dispute.

–Alternately, the mediator’s chosen approach might involve separating the 2 parties. Then it would become the mediator’s job to speak separately with those in each party. At the same time, mediators’ required actions might involve carrying a proposal from one side to those on the other side.

After the mediators’ visits to each of the separated parties, those same parties return to the table, in order to engage in a discussion. Ideally, that same discussion paves the way for establishment of an agreement. As a result, both parties walk away feeling satisfied by the agreed-upon course-of-action.

Possible problems

Each side should have among those at the table someone that has been handed enough authority to make a decision. The absence of such a problem could cause a delay by one party in adoption of the agreed-upon action.

A mediator’s lack of experience could be a problem, unless some intensive training had functioned as a substitute for that experience. The groups most apt to face such a problem would be those that had chosen to use a low-cost facilitator/mediator. Of course, some law school students do receive training in how to develop a mediator’s skills.

Both sides should want a resolution. If either side were to feel determined to stick with its own view of a fair solution, those on that same side could become deaf to the mediator’s recommendations. In such a situation, a mediator’s chances for success could all but vanish.

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