10 Reasons Why Personal Injury Mediations Can Fail
What happens if meditations for personal injury claims don’t work & no settlement is achieved?
There are times when meditations for personal injury claims don’t work and settlement is not achieved.
Here are 10 reasons why a mediation may fail and what you and your compensation lawyer can do to avoid it:
The most common reason why personal injury mediations do not work is the lack of preparation. This is very important, as preparation identifies all the necessary steps needed to proceed with the case.
Particular attention should be given to the following:
Joinder of parties: This means that all parties involved are informed and ready to attend the mediation as frequent as necessary, whether as a respondent or contributor.
Evidentiary materials: All materials and documents related to the case must be prepared beforehand.
Conference with client: it is important that your lawyer briefs you on the process. All details must be discussed with you.
Disclosure: Particular attention should be given to disclosure of any relevant legislation concerning the claim.
2. Absence of decision maker during the mediation
Personal injury mediations are a dynamic process. Most often, the parties involved only know what is presented to them, so the decision lies with the insurer.
It’s very important that a representative of the insurer is present for mediations, so that an appropriate settlement decision can be made.
3. Information that the other side does not know
This is one of the most common causes of mediation failures.
This happens when there is certain information that one party knows but is unknown to the other. This creates an “information void” to the parties involved.
The best way to avoid this is by full disclosure of any relevant information to both parties when making the claim and prior to the mediation process.
4. Experts conflicting opinions
Most personal injury cases have conflicting expert opinions, examples of these are engineering, medical or accounting opinions.
These conflicts can potentially be resolved through the following:
All parties involved agree to have a joint expert report;
Arrange a meeting for the experts to discuss their differences and agreement in opinions. A joint expert report could come out of this meeting;
The experts can also attend the mediation process and provide significant input that will lead into a compromise;
Reframing the factual basis of the opinions to narrow the differences in opinions;
Identifying the difference in opinions and then suggest that the parties continue to negotiate in spite of this. This option allows for risks and the possibility that one or both opinions will be partially or wholly accepted or rejected.
5. Other agenda
There exists instances where a personal injury case is not simply recovering a sum for damages and a party has a different agenda in mind.
Some persons use the claim to rectify a deficiency in the workplace, or identify a difficulty with an individual that caused stress or harassment and confidentiality is important in handling these cases.
The mediator should be informed of the said agenda and that the process is used to assist in compromising such agenda, but if the agenda is not disclosed beforehand, a party may not be happy with just a monetary outcome.
6. Influential outsiders
It is not uncommon for parties to consult individuals, a friend or a family member who has no legal qualifications.
Most often, opinions of these people are valued. These opinions affect the mediation process and how the parties think.
If it is unavoidable to have one, it is recommended that this individual attend the mediation meeting so that he can appreciate the proceedings as well as the legal advice given to their friend or relative.
7. False expectations
There will be cases where one or both parties will have unreasonable expectations on the claim’s outcome.
Usually the basis for these expectations are irrational. It is best to tell your lawyers about all your expectations early on.
This way, your lawyer can advise you of all the possible outcomes, and whether or not your desired expectation can be realised.
More often than not, parties have fixed views on the prospects of the case.
Mediations are often the first place in which both parties will hear the other side of the story.
The picture of the case can change once both sides are able to present their case. However, there will be times that a party will be inflexible about his or her position.
It is very important that all cases are presented well and that the legal representatives explain it to the parties, so that a change in position can be achieved.
Most participants in a mediation process would like to resolve the claim and achieve settlement as quickly as possible, however, this is not always the case.
Some may use the desire to speed things up as a negotiation tactic, but this is not always helpful and can do more damage than good.
You should be made aware that these negotiations can take time so that an agreeable settlement for both parties can be made.
Differences in personality is also a factor in the success of mediation processes.
Most often, this is the best time that a mediator should come in.
He or she should be able to create an atmosphere of impartiality during the negotiation, but if a joint session is not possible, separate mediations can do the trick to avoid clashing personalities.
A good compensation lawyer identifies areas of conflict
An experienced personal injury lawyer and mediator should be able to overcome these common obstacles so that both parties can achieve what they expected of the case.
The Personal Injury Lawyers are Queensland’s expert compensation lawyers, and will guide you through the entire process, identifying areas that need addressing early in the process and making your personal injury claim as stress free as possible.
There will be cases where one or both parties will have unreasonable expectations on the claim outcome, usually the basis for these expectations are irrational.
It is best to tell your lawyers about all your expectations early on and this way, your lawyer can advise you of all the possible outcomes, and whether or not your desired expectation can be realised.
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