In litigated personal injury claims, compulsory conferences have been a fact of life for more than 20 years. In an effort to reduce legal costs, states have introduced legislation requiring parties to confer before they can even commence court proceedings. Private insurers and the statutory workers’ compensation schemes administered by the states recognise the benefits of negotiating an early compromise and staying out of court.
That works for the injured person too, because it can take years to get to court, and that wait imposes enormous stress, both physical and financial, on the claimant and their family.
At a psychological level, mediation is effective because the claimant takes on a central role in the negotiations and, with their lawyer’s guidance, makes the final decision that lets them put the event behind them and get on with their life.
Involving a mediator ensures that the lawyers are properly prepared, that the parties themselves are invested in the negotiation process, that all options are explored, and that everyone has a clear picture of the risks they face in choosing not to settle.
Our mediators understand the rules for assessing the amount of compensation for personal injuries. Mediation magnifies the impact of a compulsory conference and increases the odds of reaching a compromise.
Claims involving medical practitioners and their patients are always highly-charged.
From the patient’s point of view, the physical consequences of a doctor’s error may be less significant than the emotional or psychological ones, there may be a sense that a sacred trust has been broken, and it can be difficult to recognise that a mistake is not necessarily the same thing as negligence.
Sometimes all the patient wants is an apology or recognition of their suffering, but before the parties know it they are caught up in court proceedings.
Lawyers skilled in this area are thin on the ground, so the legal fees are high on both sides. Doctors are acutely aware of the impact that claims can have on their professional indemnity insurance premiums, but it can be hard for them to recognise that some claims have to be paid.
They are also concerned about their reputation and the confidentiality of any settlement. The doctors’ insurers feel the competing pressures of keeping claims costs and legal fees down, avoiding negative publicity, and being seen by their insureds to be capitulating in a baseless claim.
All of these factors make settlement through the traditional form of negotiation very difficult to achieve. Mediation dissolves these barriers by letting the parties articulate their positions in a safe, confidential environment and rebuild trust.