Accident Litigation
The term “accident litigation” includes insurance disputes and professional negligence claims.
However, there is a distinct sub-category of cases that fall within the description of “accident litigation”. These cases may have embedded in them elements of insurance or professional negligence, but the cases may require a modified, bespoke approach by the mediator.
These are highly emotional situations generated by horrific fact patterns – which give rise to the litigation. Two illustrations of this concept are helpful to better define the category:
Civil Sexual Assault cases
A sexual assault was perpetrated by a teacher on a student in 1996–some 30 years ago. The technical term to describe this genre of claims is “historical civil sexual assault” cases. The perpetrator was convicted of the crime and was sentenced to 5 years in the penitentiary. The mediation actually took place in the penitentiary!
It was apparent that a joint session would have been a bad idea – although if the victim wanted such a joint session for “healing“ or for any other reason, then it might have been a good thing. It is obviously mandatory for the mediator to deal with this issue prior to the mediation.
When I went into the defence room, the perpetrator told me that he had to tell me something. I told him that I didn’t want to hear it. He asked me how I knew what it was that he wanted to talk to me about. I advised him that he wanted to tell me he hadn’t “done it“!
He confirmed that that’s exactly what he wanted to discuss. I advised him in a directory and definitive way that we weren’t there to discuss the question of whether he had done it. He’d been convicted “beyond a reasonable doubt“ of having done “it” and we weren’t there to discuss anything other than damages.
This was one of those cases where a mediator must be firm and unrelenting. The “go along to get along” approach may apply to most mediations, but not to this type of claim.
Cases dealing with death
Another example of the unique nature of these civil claims is the case of John Smith – whose wife died after gallbladder surgery. The surgeon had nicked her “common bile duct“ and Mrs. Smith developed peritonitis leading to her death. The medical malpractice case had already been settled. The case I was mediating was the husband‘s claim against his wife‘s life insurance policy. If she died by “accident” he would be paid $1 million. If her death was by means other than “accident”, there would be no payment – zero. So was Mrs. Smith’s death an “accident”?
The law on what constitutes the legal definition of accident was determined by two differently constituted panels of the Ontario Court of Appeal. The Court of Appeal on two occasions allowed appeals from judgments of Madam Justice Sachs of the Ontario Superior Court.
i) Justice Sachs found that a woman who died of an amniotic fluid embolism was the victim of an “accident”. She permitted the husband to recover the life insurance proceeds. The Ontario Court of Appeal disagreed and dismissed the case. The majority in the Court of Appeal held that Mrs. Smith’s death caused by the amniotic fluid embolism was not by accident.
ii) Mr. Jones was on a ladder working outside. He was bitten by a mosquito that carried the West Nile virus. Jones was rendered quadriplegic by reason of transverse myelitis caused by the mosquito borne virus. He sued on his accident policy claiming that what happened to him was an accident. This time Justice Sachs held that the quadriplegia was not an accident. She dismissed the claim. Jones appealed and a differently constituted Ontario Court of Appeal reversed Justice Sachs and found that the mosquito bite leading to the transverse myelitis was an accident.
Obviously cases at mediation are fact specific. However the mediator must deal with the victim in an extremely compassionate way – because the insurer may be overbearing. The facts may support either “accident“ or “no accident“ – but a 50-50 settlement may not be “in the cards“ notwithstanding litigation risk. The insurer thinks it has only a 50% chance of winning. At the end of a day of mediation, the insurer offers 25% and not 50%. The insurer’s view of litigation risk may be 50%. Just because the insurer concludes that litigation risk is 50% doesn’t mean that the insurer at mediation will offer 50%. The mediator has to understand the dynamics at play and in these types of cases must demonstrate humanity in the victim‘s caucus room – even if it looks like the mediator is excessively “plaintiff oriented“.
What is obvious to experienced mediators is that it is in the defendant‘s interest to settle the case, and this concept gives the mediator some license or latitude to attempt to inject empathy and humanity into a mediated result.
Gomberg Mediation Solutions Inc.
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Toronto, ON M5B 1X3
Canada
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