Canadian Underwriter

Lawyers Call for Re-Think on Mediation Process

March 1, 2004   by Canadian Underwriter

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A new approach to mediation, specifically on the role of legal counsel in the process, may be in order attendees heard at the recently held Ontario Insurance Adjusters Association (OIAA) “Claims 2004” conference.

In a presentation made by law firm Lerners, attention was drawn to the amount of legal time wasted on “case management” of claims going to mediation – an expensive proposition for insurer clients. That said, the lawyers agree that preparation is everything when it comes to mediation. “Preparing for mediation is a lot like preparing for trial,” says plaintiffs’ lawyer Kimberley Munroe. The same documentation and experts’ reports need to be on hand so that the claim can be settled the day of mediation.

There should also be “a steady flow of information” between plaintiff’s counsel and the insurer leading up to mediation, observes plaintiffs’ lawyer Andrew Murray. He believes in coming to mediation with a “war chest” of information, including bringing witnesses to the mediation.

Furthermore, both sides need to have a plan if settlement is not achieved at mediation, notes defense lawyer Matt Duffy. “You’re fighting a war and this is only one battle…what is your plan if you don’t settle that day?” Insurers therefore need to ask themselves how flexible they want to be in order to achieve a settlement. “Do you settle for less, or is it good to have a line in the sand?” he adds.

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