FEATURE ARTICLE -
Issue 53 Articles, Issue 53: Dec 2011
1. Preparation
There is no doubt that the most common reason for failure in personal injuries mediations is a failure to identify, prior to the mediation, that all necessary steps for the proper preparation of the matter to proceed to mediation have been taken. Particular attention should be paid to the following:
(i) Joinder of Parties: The Personal Injuries Proceedings Act provides for an easy mechanism for joinder of contributing parties as respondents or contributors to the proceeding in a no costs environment. The consequence of this legislation has been to expand the number of parties attending mediations where that Act has application. Attention should be given to ensuring all necessary parties are prepared and ready to attend the mediation, as a frequent cause of mediations either not proceeding or failing is the late joinder or failure to join a party, whether as a respondent or contributor, who should properly be attending the mediation.
(ii) Evidentiary Material: All necessary factual enquiries and evidence should be assembled prior to mediating the claim. Necessary disclosure of factual investigations in accordance with the provisions of any of the relevant legislation or UCPR’s should be attended to well prior to the mediation. All necessary expert reports should be obtained and exchanged. A mediation should not proceed on the basis of a submission that “if the claim does not settle at the mediation we will obtain an expert to provide us with a report which we are confident will say x”. This approach to the mediation will necessarily ensure that the other side will take no notice of that submission until presented with such a report.
(iii) Conference with client: When acting for plaintiffs, it is necessary to have an early conference in order to explain the process. Client’s expectations need to be dealt with. Updated instructions need to be obtained to comply with disclosure provisions if some time had elapsed since either a compulsory conference or an earlier informal conference prior to the mediation. Those advising insurers must ensure that all necessary advices to the insurer have been provided in a timely way. Particular groups of plaintiffs sometimes require particular need for an early conference. Infants claims. psychiatric or brain injured plaintiffs, or plaintiffs requiring sanction often need detailed conferences in order to obtain appropriate instructions via litigation guardians, and for appropriate advice to be given in relation to management of any damages fund. Plaintiffs involved in class actions, with common causes of action but separate damages also need to be conferred with at an earlier stage prior to the mediation. Plaintiffs in dependency claims need to have a detailed conference in order to explain the unique nature of such claims. Workplace stress claimants often have other agendas which need to be ascertained in an early conference.
(iv) Disclosure: Particular attention should be given to all necessary disclosure required by any relevant legislation. In particular, from a plaintiff’s perspective, it is important to ensure such disclosure is given to the insurer’s representatives at an early time. There is no benefit to be gained in providing late documentation immediately prior to or at the mediation in circumstances where the insurer, who may be absent from the process either in interstate or overseas, will not have appropriate time to digest that additional material and change necessary instructions.
2. Decision Maker Not Present at the Mediation.
The mediation of a personal injuries matter is a dynamic process. The parties often come to the mediation knowing only that which has been written about the plaintiff or other witnesses in documentary material taken by third parties, be they experts or investigators. It is often the case that the presentation of the plaintiff can be markedly different to that which is set out in the written material. As a consequence if the appropriate decision maker for the insurer is not present at the mediation it is often difficult for those who represent it to appropriately describe those differences and thereby obtain altered instructions. Plaintiffs are almost inevitably in attendance at the process and so this issue does not often arise on their side however it is often the case that insurers of parties at the mediation are located interstate, or overseas. The issue of requiring insurers to attend is a vexed one which has not been adequately resolved to date. None the less in all claims, whether they are large or small, insurers should be encouraged to ensure that an appropriate representative with appropriate authority to settle is in attendance.
3. What the Other Side Does Not Know
A common cause for failure of personal injuries mediations is that one side knows something about the other side’s case that that side does not know. This creates an “information void” between the parties. In the absence of resolving that information void the claim is ultimately not capable of settlement as each party is essentially mediating different individuals. The common example is videotaped evidence of the plaintiff’s activities indicating inconsistency with impairment which the plaintiff relates to reporting medical practitioners or others. A forensic decision needs to be made by those who hold such evidence firstly as to whether or not the material satisfies the necessary requirements for a “seal up” order under the provisions of any relevant legislation regarding fraud or otherwise allowing non-disclosure, and then secondly whether or not in order to achieve compromise some or all of that evidence is disclosed. In the absence of disclosure such matters are difficult to settle. In almost all cases, I consider that disclosure is probably of assistance to the process, and the material can often be used to best effect at the mediation rather than preserving it for some forensic advantage at a trial.
4. Conflicting experts
Almost all personal injuries mediations contain some competing expert evidence whether it be medical opinion, expert engineering opinion or accounting opinion. Differing expert opinions have become almost a mandatory part of the process. Such differences can be resolved in a number of ways either:
(i) By agreement to obtain a joint expert report;
(ii) By arranging for a meeting of experts to discuss points of difference and agreement and providing a joint report arising out of such meetings;
(iii) By experts attending the mediation and participating in the discussions leading to compromise;
(iv) Reframing the factual basis for the opinions with a view to narrowing the difference between the experts.
(v) Identifying the difference in opinion and then suggesting the parties negotiate in spite of the difference thus allowing for the risks and prospects of one or other or both opinions being wholly or partially accepted or rejected.
5. Other Agendas
Often a personal injuries claim may not simply involve an agenda concerning the recovery of a damages sum. A party may be approaching the process with a different agenda in mind. Work place stress plaintiffs often regard the process as being one which is designed to rectify some deficiency in the workplace, or identify some difficulty with a particular individual who has caused stress or harassment. Sex abuse plaintiffs often profoundly require some form of apology from a person in authority from the institution to which the abuser belonged. Class action plaintiffs of a variety of kinds may seek a non-monetary outcome to the process. Employers can often harbour issues concerning multiple claims in the workplace arising out of similar injuries. Medical negligence plaintiffs often seek some acknowledgement of fault on the part of the treating doctor. Confidentially is an important issue in many of these cases. It is important to identify whether or not such agendas exist at an early stage and ensure that the mediator is made aware of such agendas and that the process is used to assist in the compromise of those agendas if that is at all possible. If those agendas are not addressed then the client is likely to remain unhappy with a simple monetary outcome, and the unhappy client will almost inevitably be unhappy with the legal representatives.
6. Influential Outsiders
It is a not uncommon experience to progress a personal injuries mediation almost to its conclusion only to be informed that one of the parties, usually a plaintiff, wants to consult with the person, usually not a legal representative, and seek advice about the outcome which looks like it is about to be agreed. The “phone a friend” experience is often particularly repugnant to the legal representatives involved when the “friend” is someone remote from the mediation and who has no legal qualifications. On the defendants side the experience is encountered when the legal representatives present at the mediation need to refer any settlement proposal to “in-house counsel” for large corporate defendants or insurers who are often not at the mediation. If indications are given about the involvement of family or friends or advisers to parties involved in the mediation, then steps should be taken to ensure, if at all possible, the presence of those “influential outsiders” at the mediation. Ensuring that such persons are present at the mediation will have the effect of allowing those persons to see the mediation process develop, hear the arguments advanced on all sides and thus be able to appreciate the direct legal advice being given to their friend or associate. Excluding such influential outsiders from the process will only ultimately lead to a “phone a friend” experience with the likely result that the party seeking such advice will be more influenced by the close associate then the impartial legal representative.
7. False Expectations
On either side of a personal injuries claim a client can, from time to time, hold unreasonable expectations about the outcome of the claim. Where the basis for that expectation is on irrational or emotive grounds, or is based upon an inappropriate risk assessment, if steps are not taken to identify that expectation and deal with it either prior to, or during the mediation process, then agreement will ultimately be impossible. Plaintiffs involved in personal injuries claims have often suffered profound losses, e.g. loss of mobility, self-respect, health generally, business, hopes, ambitions and dreams for the future. Such losses often result in some degree of denial, depression or anger. This may lead to irrational views on the mechanism by which compensation can solve those issues. It is necessary to identify at an early stage preferably prior to the mediation whether the clients expectations of the process are within the range of reasonably perceived outcomes. If they are not, it will be necessary to ameliorate those expectations by a detailed client conference which should take place prior to the mediation.
8. Inflexibility
Parties often bring to mediation certain fixed views about the prospects of their case based upon the evidence which has been assembled to that point in time. The mediation may often be the first point at which either side will have the opportunity to see the other side’s case orally presented and indeed to see the other litigant in person. The picture of the case can change once that opportunity has been exercised. In order to achieve compromise it is necessary in almost every mediation to reassess the strengths and weaknesses of the case based upon what is seen and heard during the process. It is almost inevitable that some fact or matter will emerge in the course of the mediation which will cause some alteration of the originally held perceptions of the strengths or weaknesses of one’s case. Inflexible or fixed instructions, particularly in circumstances where no instructor is present can often be a total barrier to the ultimate compromise of the action. In order to effect compromise there must always be a degree of flexibility available in the settlement range. The progressive bargaining nature of a personal injuries negotiation affords a process for such adjustment. Inflexibility in relation to the position which one side holds without any available room to negotiate from that position is often a common reason for failure in personal injuries mediations.
9. Impatience
Participants in mediation regularly express a desire to progress quickly to the end position in negotiations. Parties and/or their representatives often seek to avoid a lengthy progressive bargain negotiation by “cutting to the chase” or “getting to the bottom line”. This in itself is often a negotiation tactic. Such a degree of speed in negotiations is almost always unhelpful. Such haste inevitably results in a peremptory end to negotiations with an impasse between the parties which cannot then be resolved. One side may often not know what is going on in the other room. Client expectations may be being managed or other agendas may be being addressed. All of these things need time which is not available if the negotiations are ended quickly. The mediator should be used to judge the pace of negotiation. The mediator can filter information, diffuse situations where there is a degree of high emotion or strongly held views, re frame issues so that each side may look at them in a different light or suggest negotiation strategies including whether or not negotiations should progress more quickly.
10. Personality
It is an inevitable consequence of an adversarial profession that certain personalities who regularly meet may often experience difficulty in attempting to negotiate with one another. Mediation is tailor made for this eventually. Inserting a mediator into oppositional personalities is the best mechanism to ensure that a neutral conduit can be utilized to conduct the negotiations. In such circumstances a mediator may be inclined to avoid any form of joint session, and simply conduct the mediation in private caucus.
Conclusion
This list of common reasons why personal injuries mediations fail is not designed to be comprehensive. It is simply an identification of some common reasons which occur regularly in personal injuries litigation. An experienced personal injuries mediator ought to be in a position to provide assistance to the parties to overcome these obstacles. It is important to utilise the mediator. The mediator is not there simply to communicate offers between the parties in separate rooms, but can be relied upon to provide a variety of assistance to overcome all of the matters referred to above which ought to ultimately facilitate a successful outcome.
Peter Munro
