January 8th. 2014
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Picture the following scenario: Joe Plaintiff is seriously injured in an automobile accident. He lives in Smithers. Joe's lawyer works out of Vancouver. The ICBC adjuster is located in Prince George, and there is a major claims examiner located in Vancouver. Defence counsel are located in Prince George.
Discoveries have been completed, and there is a trial date set in two months time. No offers have been exchanged; the parties are discussing mediation. They can use a mediator from Prince George or from Vancouver, but Kelowna is just too far away.
There is no convenient location for this mediation. A Prince George location requires the plaintiff's counsel, the examiner, and possibly the mediator to travel to Prince George via airplane, stay overnight, and the rental of a hotel for all out of town participants. The plaintiff would face a five hour automobile trip - that could be worse in the winter. A Smithers location would be out of the question, as everyone would need to get there by plane, at considerable cost.
The cost of this mediation could be justified if the likelihood of success were great. However, if the purpose of the mediation in the mind of either party is to show the other side how fixed they are in their position and how justified their position is, based on the law and the facts, this is a lot of travel and a lot of cost to make that point.
Personal injury files are, by their nature, very positional. The lawyers, particularly the plaintiff's lawyer, have a large personal stake in the outcome because of their contingency contract. As a result, opening positions at a mediation will often be far apart, on the hopeful but unproved belief that the higher or lower the opening position is, the more likely the end result will satisfy a party's expectations. So a good deal of mediation time and energy is spent paring down the gap between the parties until close to the end of the day when, hopefully, they reach a range that reflects what might happen if the file goes to court.
A personal injury mediation is also a "cold" process. The parties do not know each other except professionally. The defendant is seldom present at the table. After opening remarks, the rest of the mediation usually takes place using caucus and shuttle diplomacy. Interests are simple - pay as little as possible or get as much as possible.
Now, picture this: Suppose the parties agree to mediate using a videoconferencing platform. In this situation, the mediator would set up the whole process. He or she could work from anywhere in B.C., and could initially communicate by email or telephone, then videoconference.
It would be an easy matter to have pre-mediation meetings. One meeting will be with the adjuster, the examiner, and defence counsel. It can all happen remotely with no need for anyone to travel. The second meeting will be with plaintiff and his counsel - again, with no need for anyone to travel. The advantage of those meetings is that both parties can be canvassed as to their positions, and any information they might need from the other party. Time expended for both meetings would be no more than two hours.
Now for the mediation: It would take place on the videoconferencing platform, with all parties being present. The parties will have put their minds to their positions because of the pre-mediation meetings, so much of the posturing will be eliminated. Also, our experience in distance family mediation is that the use of remote platforms cools down the emotional atmosphere in the room.
So let's say the chance of success at a distance mediation is no greater that at an in-person session. The cost certainly is considerably less. Also, the convenience to all the parties is incomparable to the hours of travel and hotel rooms that the alternative would require.
Mediate B.C. has shown in its distance mediation projects that the use of technological services like videoconferencing works. Clients like the process, and settlement happens. The time has come to look at utilizing videoconferencing in new and creative ways. Personal injury litigation is a natural.
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