What is mediation and how does it differ from a joint settlement meeting?
Mediation and joint settlement meetings are both forms of alternative dispute resolution (ADR) which can be used to resolve personal injury claims outside of traditional court room litigation. While they do share some similarities, there are key differences between the two processes.
Usually, in a joint settlement meeting (JSM) there will be joint discussions that take place between the different parties followed by separate discussions between individual parties and their legal representatives. The process is usually a bit less formal and structured compared to mediation. Any agreement reached following a JSM is usually because of direct negotiations between the parties and their legal representatives.
In mediation, a neutral third party, known as the mediator, facilitates communication and negotiation between the parties. The mediator helps the parties to explore any points of agreement between them, ongoing issues in dispute and helps to generate options, and work towards a mutually acceptable agreement and settlement.
What are the benefits of mediation in personal injury litigation?
Mediation in personal injury litigation can be used to resolve a wide range of disputes, and it is apparent that there is ongoing major shift towards ADR in civil claims including for personal injury claims.
One of the most significant advantages of mediation is that it places the decision-making power into the hands of the parties involved. Unlike litigation, where a judge imposes a binding decision, mediation empowers the parties themselves to decide upon their own solution. This gives the parties an opportunity to explore a wide range of potential options and reach an agreement that addresses the core issues in each individual case.
Mediation can also be more cost-effective than litigation. Litigation is typically expensive, with legal fees, court fees, and other expenses accruing rapidly over time. In contrast, mediation typically involves lower costs and fees and there is greater control over what you want to spend. Mediation can also offer a faster alternative to traditional litigation, and this is particularly important for our injured clients where an expedited settlement, can enable them to move forward, ensure they have the right rehabilitation in place and rebuild their lives without the burden of ongoing litigation and a trial date looming over them.
Potential pitfalls of mediation in personal injury litigation
While mediation is generally an effective and beneficial form of dispute resolution, it is not without its potential pitfalls. Understanding these pitfalls can help parties prepare for mediation and navigate the process more effectively.
Whilst one of the benefits of Mediation has typically been that it is a voluntary and consensual process, for it to be successful, all parties must be willing to engage in the process in good faith and be open to finding a mutually acceptable settlement. If one party enters mediation with a predetermined outcome or is unwilling to compromise, it can hinder progress and prevent the parties from reaching a settlement.
A refusal to engage in mediation altogether and work collaboratively, could be raised at conclusion of the claim and that party may then be penalised in costs, for example, either a reduction in costs or indemnity costs. A more recent judgement handed down by the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council has confirmed that the Court can make an order for the parties to engage in non-court dispute resolution and/ or order a stay in proceedings to allow for ADR to take place. There could therefore be an argument that we are now moving in the direction of compulsory mediation in some circumstances.
There is also a major move to use Mediation where there is a dispute about costs upon conclusion of a claim and in the County Court, compulsory mediation for lower value claims on the smalls claim track is currently awaiting sign off.
If the parties involved in mediation have unrealistic expectations about the outcome or the mediator’s role in resolving the issues in the case, then this could lead to disappointment, and ultimately, the breakdown of mediation efforts.
Good preparation is therefore key to successful mediation. It is crucial to review your case properly, gather relevant information and documentation, and consider the key issues and desired outcome before entering mediation. Failure to prepare adequately could potentially weaken your position and ability to negotiate effectively.
Despite the best efforts of the parties and the mediator, there is no guarantee that mediation will result in a settlement agreement and the case may ultimately end up going to trial. It is also important to bear in mind that the decision reached may not be binding and particularly if your client is a child or a protected party, any settlement agreed must still be approved by the Court.
Does mediation in personal injury claims work?
Overall, Mediation can be a highly effective and worthwhile method of reaching a settlement in personal injury claims. By empowering the parties to reach an agreement, and fostering open communication and timely outcomes, mediation offers a compelling alternative to the traditional litigation route. It therefore requires careful consideration as a preferred method of dispute resolution.
How Moore Barlow can help
At Moore Barlow, we go beyond mere legal representation. Our commitment to pursuing the highest compensation available and our empathetic understanding of your needs distinguish us in the world of personal injury law.
Our dedicated team of personal injury lawyers has built a reputation for excellence through countless successful serious injury claims. When you choose Moore Barlow, you don’t just get lawyers – you gain advocates and partners on your path to recovery.
