Mediation for Alberta Injury Claims

Calgary Car Accident Lawyer Explains

Video Transcript: 

Steve Grover: 

The mediator is sort of like a referee in a hockey game, he or she is not there to judge the case, but just try and be a facilitator to bring the two sides closer and closer to try and settle the case on a fair and reasonable basis, according what the law is here in Alberta.

Molly Hendrickson: 

If you file an injury claim in Alberta, does that mean you have to go to trial? We're gonna talk to lawyer Steve Grover about that on today's episode of Ask the Lawyers. Steve, thanks for joining us.

Steve Grover: 

Alright, thanks for having me again, I hope you're doing well too.

Molly Hendrickson: 

Thank you. Many people might not realize that throughout Alberta, if you have an injury claim, you actually have to go to mandatory mediation first, can you explain the mediation before trial process to us?

Steve Grover: 

Yeah. In Alberta, for last 10 plus years, we do have a mandatory mediation rule, which requires you to go to a mediation in good faith to try and settle your case before the courts will give you a trial date. Mediation is sort of like a settlement meeting where I, myself, plaintiff's counsel shows up with my client, defense counsel show up with their adjuster, who has authority to sign the check if we come to some kind of settlement, and then the mediator is sort of like a referee in a hockey game, he or she is not there to judge the case, but just try and be a facilitator to bring the two sides closer and closer to try and settle the case on a fair and reasonable basis according what the law is here in Alberta.

Molly Hendrickson: 

You touched a little bit about the process, but can you tell us, do people have to have attorneys with them, can they go it alone when they're going to mediation?

Steve Grover: 

Well, first of all, if you're going to file an injury claim in Alberta against a big bad insurance company, I would recommend, number one, having a lawyer, you can do it for free or you can hire a lawyer like myself, and we charge a contingency fee, which means we work for free, you don't pay us anything up front, at the end, we take 30% of the proceeds that we get from the insurance company. Yeah, people can go to mediation on their own, but the thing is, it's sort of like if the doctor says, "Hey, you got an appendix and it's gonna burst if we don't do the surgery tomorrow." Are you gonna go home and take out a butter knife and try and take out your appendix yourself? Probably not. I would recommend that hire a lawyer, get an expert in your side that knows of the litigation steps and knows how to present your case properly, but yeah, you can do a mediation sort of like a self-rep person in court, but I don't recommend it.

Molly Hendrickson: 

Can you tell us a little bit about the mediator's role? Who is the mediator? Is it a judge, an attorney and do they make decisions for the party?

Steve Grover: 

A mediator nowadays is... In the old days, when mediation was first coming up, was usually lawyers, especially lawyers that have done insurance claims, like represented an insurance company like Allstate or Plaintiff counsel, which represent injured people like myself. Over time it's evolved where now we do have a number of former judges that have stepped down and retired from the Court of Queen's Bench in Alberta, and they have taken on the role as mediator. And it sort of helps when you do have a former judge as a mediator, 'cause he or she can tell my client and the other side exactly where we would stand if this case was heard in the Courthouse. But usually if mediators are people that are lawyers and former lawyers or former judges, and they take certain courses, either you can take a Master's in Law and Mediation or you can take a bunch of certificate courses to be certified as a mediator, so they're pretty qualified in what they're doing as a mediator when we hire a mediator for a case.

Molly Hendrickson: 

Can you explain the theory behind the negotiations that most mediators use to bring the parties together, and do you think that mediation... Is it worthwhile?

Steve Grover: 

Yeah, it's sort of like going back to law school, and when I went to law school, it was like the mid to late '80s, and mediation was just a new form of alternative resolution that was developing, and we took a course on it, one really took it seriously because of, "Hey, we wanna go to trial." The course of change where they're actually recommending going to mediation, and there's mandatory mediation in Alberta. Most mediators are trained, and it's gotta be a win-win kinda situation where both parties have to be reasonable, they have to give up positions to get a resolution, if it's all or nothing, it's not gonna work at a mediation, so most mediators say at the outset of a mediation, "Hey, you know, if we come to a resolution today, you're probably not happy and the other side is probably not happy, therefore that tells me that both sides have given up positions, but it's come to a reasonable resolution where we can settle your claim on both sides and you can move along with your life."

Molly Hendrickson: 

Yeah, that kind of bleeds into my next question. In an injury claim, if someone is not satisfied with settlement negotiations and mediation, then what happens?

Steve Grover: 

Well, fortunately, we have binding mediation or ADR, and we have non-binding mediation, essentially, both parties will go to mediation and say, "Okay, we're gonna come in good faith." And the court expects you to come in good faith to try and resolve the claim on a fair and reasonable basis according to what the case is worth, but if you don't like the situation and you don't like what's being presented, you can always walk away. And the good thing about mediation is it's all on without prejudice basis, and what happens in Vegas stays in Vegas, so whatever is raised at the mediation can't be produced at trial or raised, because it's all in the without prejudice basis. So that's a good thing about mediation, there is an ability to walk away and then press your case to trial, but mostly in my legal practice, about 80%-85% of the claims do resolve in mediation, so I think it's a good step to take to try and resolve your claim.

Molly Hendrickson: 

Yeah, absolutely. Sounds like it. Thank you for joining us today.

Steve Grover: 

Thank you for your time and hope you have a great day.

Molly Hendrickson: 

Thank you, you too. And that's gonna do it for this episode of Ask the Lawyer. My guest has been Steve Grover. If you wanna ask him a question about your situation, you can call the number on your screen. Thanks for watching, I'm Molly Hendrickson for Ask the Lawyers.

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