Case Managed Mediation: A Complimentary Service to Get Your Case Ready for Mediation

Case Managed Mediation: A Complimentary Service to Get Your Case Ready for Mediation

When I meet with people who are frequently involved in mediations in a variety of roles, we often talk shop and discuss trends in the profession. After conferring with my colleagues, both at Cooper Mediation and generally in the personal injury and insurance practice areas, I can confirm we are all seeing an important change: the percentage of matters settled at the first mediation is in decline. We believe a combination of factors is causing this shift. The most significant reasons include: late evidence [typically experts’ reports], misaligned settlement expectations between parties, and the timing of the mediation in relation to the anticipated life expectancy of the case.

Fortunately, Cooper Mediation has a potential solution to offer — case managed mediation.

If you retain a mediator at Cooper Mediation to conduct a mediation, we will offer case management services at no additional cost.

Here are three examples to demonstrate how case management can help prepare the parties and their counsel to be better able to have a meaningful productive mediation.

Before Examinations for Discovery 

We will schedule a teleconference amongst counsel and the mediator where we will discuss the:

-nature of the claim and nature of the defences
-production requests
-need for examinations for discovery for some or all of the parties
-timing and coordination of scheduling of examinations for discovery [taking that task away from clerks and assistants and ensuring that examinations for discovery take place at the optimal time]
-need for reports from experts and the timing for delivery of those reports
-time required to allow for undertakings given at discovery to be satisfied
-needs and timing requirements for settlement authority to be obtained from insurers
-scheduling of the mediation [once again, taking that task away from clerks and assistants and ensuring that the mediation takes place at the optimal time]
-appropriateness of a brief telephone mediation followed by the delivery of a mediator’s report [in jurisdictions where mediation is mandatory] so that the matter can be set down for trial and so that the mediation takes place in closer proximity to the anticipated pre-trial or  trial dates [making mediation more productive]
-possibility of preliminary settlement discussions

After Examinations for Discovery

We will schedule a teleconference amongst counsel and the mediator where we will discuss:

-establishing a timeline for satisfaction of undertakings
-determining which undertakings will be critical for a productive mediation
-agreeing to refusals with a view toward eliminating or minimizing the need for motions
-determining the need for experts’ reports and establishing a realistic timeline for delivery of such reports
-ascertaining the needs and timing requirements for settlement authority to be obtained from insurers
-scheduling the mediation, having regard for the needs, requirements and timing as discussed above
-considering the appropriateness of a brief telephone mediation followed by the delivery of a mediator’s report [in jurisdictions where mediation is mandatory] so that the matter can be set down for trial and the mediation takes place in closer proximity to the anticipated pre-trial or trial dates [making mediation more productive] preliminary or further settlement discussions

After The First Mediation

We will schedule a teleconference amongst counsel and the mediator where we will discuss:

-establishing a timeline for satisfaction of outstanding undertakings
-identifying impediments or barriers to resolution and brainstorming ways and means to overcome these challenges going forward
-agreeing to refusals with a view toward eliminating or minimizing the need for motions
-determining the need for further experts’ reports and establishing a realistic timeline for delivery of such reports
-ascertaining the needs and timing requirements for further settlement authority, if appropriate,  to be obtained from insurers
-scheduling the continued mediation; having regard for the needs, requirements and timing as discussed above
-further settlement discussions

Cooper Mediation will devote up to one hour in total to facilitate these discussions at no additional cost to the parties, provided that the matter proceeds to mediation with Cooper Mediation. If additional time is spent by Cooper Mediation or if the matter is resolved in advance of mediation, all time spent by Cooper Mediation will be billed at the applicable hourly rates for mediators at Cooper Mediation.

It is in everyone’s interest to maximize our productive time at the mediation table. With Cooper Mediation’s free case management services, we can work cooperatively to ensure that the parties have the best opportunity to resolve the matter at mediation or, at minimum, to have the most productive discussions and negotiations at mediation. If you have any questions about these services, please feel free to contact any of the mediators at Cooper Mediation. We will be happy to discuss the benefits of case management with you and/or your clients.

ABOUT THE AUTHOR

Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating and arbitrating primarily personal injury and insurance cases. He serves as an arbitrator in loss transfer and party disputes under the Insurance Act

Vance can be reached at vance@coopermediation.ca or (647) 777-4011.

To schedule a mediation with Vance, visit: https://www.coopermediation.ca/vances-online-calendar/.