Why can your personal injury mediation fail?

Contrary to what many people believe, personal injury cases do not always have to be wrapped in a court battle. Many times, the defendant and the plaintiff can come to a settlement through mediation. Personal injury mediation is a process where a neutral third person (the mediator) helps the parties (the plaintiff and defendant) to resolve the issue and arrive at a settlement. The entire process is confidential and cannot be used at a court hearing. While the process is excellent for parties that want to negotiate in good faith and work towards a mutual agreement, it is prone to failure, especially in cases where the intentions of one part do not mirror the other.

However, by and large, personal injury mediation is quite successful. It is an excellent process for a defendant because it keeps the publicity of the personal injury at a minimum and costs low. Mediation is also suitable for plaintiffs because it reduces the trauma and emotional exhaustion that a plaintiff will have to undergo, in relation to a court case. As mentioned before, there are cases where personal injury mediation may fail. What are the reasons for its failure and how can you avoid it? Let’s find out.

4 reasons why personal injury mediation fails and tips to avoid it

Lack of preparation

As is with most things, the most common reason why personal injury mediation fails is when both parties fail to prepare for the process. This may be because parties do not believe that thorough preparation is required because it is not a court case, or underestimate the value and intensity of the process. Failing to prepare for all of the mediation steps required to continue with your case can result in an ineffective process that bears to settlement or resolution. 

Here’s what you should do to ensure that you are properly prepared for the mediation process:

• Ensure that all parties involved are informed and prepared to attend the mediation as frequently as required.
• Organise and prepare all evidentiary materials related to the case beforehand.
• Make sure that your lawyer briefs you on the process. 
• Ensure that relevant legislation concerning the claim is disclosed.

Conflicting opinions from experts

Depending on the circumstances surrounding your personal injury case, there will be a need for expert options from medical experts, psychiatrists etc. In some cases, these expert opinions can be conflicting, subsequently leading to the failure of the mediation process. While in some cases, resorting to the court is the only option left, in others, conflicting opinions can be resolved.

Here’s how conflicting opinions can potentially be resolved:

• Have all parties agree to have a joint expert report
• Arrange a meeting for experts to discuss their differences and agreement
• Allow the experts to attend the mediation process
• Identify the difference in opinions and agree to negotiate despite this (with this option, one or both opinions will be either partially or wholly accepted/rejected)

Inflexibility from either party

With any form of negotiation, inflexibility is a major obstacle. This is made even worse if each party has its own fixed idea of what the resolution should be. A mediation meeting will most likely be the first place in which either party hears the other side of the story. This can then influence what either party thinks as well and possibly bring each party to common ground. However, as mentioned before, this does not always happen. 

To give either party the highest chance of reaching a common resolution, even if each party appears inflexible, then ensure that each side’s case is well presented and that the legal representatives of each party explain their position thoroughly.

Different agendas

There is always a chance that the plaintiff does not just want to recover compensation for damages. Sometimes, there can be an ulterior motive, making mediations extremely difficult. Some persons may use the claim to rectify a deficiency in the workplace or identify an individual who caused them stress at work.  In these cases, if the mediator is not informed, then monetary compensation may be offered, which will not fully satisfy one party and cause an issue, ultimately breaking down the mediation.

To avoid this, ensure that the mediator is fully aware of said agenda and that the process is used to accommodate this as well. 

We hope this helps you to understand why a personal injury mediation can fail and how you, either as the mediator, defendant or plaintiff can avoid it. If you have any other questions regarding personal injury compensation or concerns about your specific case, feel free to contact Prominent Lawyers. They will offer you the best legal advice and guidance for your situation. Our lawyers are here to support you and get you the help you need.

*The contents in this article are solely intended to provide general information in summary and do not constitute legal advice. We recommend seeking the assistance of a legal professional to discuss any matters at hand.