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Will My Personal Injury Case Go To Trial?

The vast majority of personal injury cases are settled out of court. It is often in the interest of both parties to settle as trials are time consuming, expensive and, most importantly, the decision making is taken out of the parties’ hands and placed in the hands of a third party (either a judge alone or judge and jury). Settlement before trial, however, allows the parties to remain in control of the outcome and the decision making.

A settlement occurs when an insurance company or defendant and the plaintiff agree upon an offer of payment to the injured person. Settlements can be made at any time before the judge or jury make a decision. In other words, even if a trial date is set, there are still alternatives and your case may not need to proceed to trial. Some cases even settle in the midst of trial. If the evidence that has been presented is so favourable to one side, the other side may attempt to settle the claim during the trial.

Most commonly, however, settlements are either reached at a mediation, during a pre-trial conference, or during negotiations following the discovery process.

Mediation is an informal alternative dispute resolution process where a neutral third party (the mediator) facilitates discussions and negotiations between the parties to the dispute and their lawyers. The goal of mediation is to open the lines of communication between parties in an effort to reach a mutually agreeable settlement. Even if a settlement agreement is not reached, mediation can help the parties emerge with a better understanding of the opposing party’s position and move the matter forward to a pre-trial conference or trial.

Pre-trial conferences are where a judge or another court official called a case management master facilitates a discussion between the parties. Parties may, therefore, find pre-trial conferences more formal. In many ways a pre-trial conference can be similar to the mediation process. Pre-trial conferences, just like mediation, offer parties to the dispute the opportunity to reach a settlement. Case management judges and masters have limited decision making authority during a pre-trial conference but they will often provide you with their opinion on the merits of your claim and this can also help inform your settlement decision.  If settlement cannot be reached at the pre-trial conference, the issues can be further defined and trial management discussions will take place.

If all settlement attempts fail and a resolution cannot be reached, then the dispute will proceed to trial.

If you or a loved one has been injured, please contact Judith Hull, an experienced personal injury lawyer at McKenzie Lake Lawyers.

This blog was written by Lawyer Judith Hull and Summer Student Wincy Ho.

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