Canada: Strategies For Managing Claims Related To Subjective Illnesses Or Injuries In A Mediation

Subjective injuries present a multifaceted problem for defense lawyers. To clarify, subjective injuries refer to instances where a plaintiff makes a claim for chronic pain or a mental illness that is difficult to objectively substantiate through scientific or medical evidence.

This then raises an important question: what is the difference between cases involving chronic pain where the plaintiff receives compensation for his or her injuries and those cases where no such awards are made? The answer appears to be related to the plaintiff's credibility. Specifically, because of the lack of objective evidence that is available to support a claim for chronic pain, almost all of these cases boil down to the issue of credibility.1 This point is supported in the FSCO decision, Quattrocchi v State Farm. In particular, Arbitrator Makepeace stated that in cases involving chronic pain, where there is no objective evidence available, the credibility of the plaintiff is critical.2

This then gives rise to another issue for defense counsel in the context of mediations. Specifically, faced with a lack of objective evidence, there will likely be a tendency for defense counsel to attend mediations with skepticism over the alleged injuries. Defense counsel must balance the need to inform the plaintiff of the defense position regarding the veracity of the plaintiff's claims with making the mediation a productive exercise. An overly aggressive approach may cause the mediation to quickly end.

The purpose of mediation is to settle a dispute without the use of litigation or at the very least, to better understand the opposing side's case. With this in mind, it becomes clear why a mediation may well fail when the defense enters it with the intention of aggressively casting doubt on the plaintiff's subjective injuries, and when the plaintiff is left to defend his or her position. In short, this practice has the effect of turning the mediation into a courtroom, which is the opposite of what a mediation is designed to achieve.

So then, how should defense counsel approach mediations that involve subjective injuries in a way that balances zealous advocacy on behalf of the insurer with a way that furthers the objective of mediation?

1. The Principled Approach to Disputes

In "Getting to Yes: Negotiating Agreement without giving in", Fisher and Ury discuss the principled approach to negotiations. Applying this method to mediations can be an effective way for defense counsel to approach chronic pain claims and the difficulties that arise from them. The principled method Fisher and Ury suggest involves the application of four elements: (a) separate the people from the problem, (b) focus on interests rather than positions, (c) invent options for mutual gain, and (d) insist on using objective criteria.

(a) Separate the people from the problem.

Fisher and Ury suggest that a negotiator should not view the opposing side as an opponent but rather one should attempt to work with them in dealing with a mutual problem. In short, they suggest that one should be "soft on the people" but "hard on the problem".3 To achieve this, in his article Mediation and the Psychological Injured Plaintiff, David Alcorn suggests that a party should strive to frame statements and issues in neutral and non-judgmental language.4

(b) Focus on interests rather than positions.

Fisher and Ury suggest that instead of focusing on positions (i.e. believing the plaintiff is exaggerating his or her injuries) one should instead focus on reasons (i.e. stating that a doctor has found inconsistent reports of the plaintiff).5 David Alcorn suggests that in some cases, the interests of "psychologically injured persons may extend far beyond monetary considerations".6 Consequently, applying this principle may uncover those interests, thereby facilitating settlement. The simple opportunity for a plaintiff to be heard and express his or her difficulties directly to the defense side often carries a therapeutic value with positive results in terms of resolving the claim. Therefore, letting the plaintiff speak at a mediation may prove highly beneficial.

(c) Invent options for mutual gain.

As David Alcorn points out, this notion of mutual gain is harder to achieve in the context of personal injury claims since the insurer and the plaintiff will not likely have an ongoing relationship.7 However, defense counsel should still continue to brainstorm solutions without resorting to criticisms. For example, an apology directly from the insurer can go a long way in creating a positive environment for the mediation. This is particularly true in cases where liability is not an issue. In cases where liability is contested, the insurer can still express remorse for the plaintiff's circumstances without the admission of liability.

(d) Insist on using objective criteria.

This strategy involves insisting that the result of the mediation be grounded on an objective standard.8 This can be challenging in cases involving mental health and chronic pain in that there is a limit to how much objective evidence can be obtained. However, there are standards that are more "legitimate" than others. For instance, instead of simply stating that the plaintiff is not injured to the extent he or she claims to be, one can make reference to the opinion of experts or to determine how similar cases have been treated in the past.9

2. Other Strategies to Manage Subjective Injuries in a Mediation

Michael Carbone suggests that parties should focus on the evidence available.10 This then allows parties to be able to focus on the facts before them rather than on theories or allegations. Further, he advises counsel to avoid antagonistic remarks.11 This becomes more difficult when defense counsel is not convinced by the plaintiff's claim. However, in these situations employing the "Magical Paradox" technique may prove useful. An example of this technique is:12

"I bet you feel that nobody knows what this situation has done to you; how it has broken you up inside, and made it difficult for you to believe that you will ever be able to have a normal life again. Isn't that so?"

The "magic" in this technique is that you have indirectly stated what the plaintiff is thinking, enabling him or her to agree with what you are saying. However, in saying this, you have not agreed with the claimant, or even accepted their version of facts to be true. Instead, all the speaker has done is convey an understanding of the way the claimant feels.13 This technique is also effective because where the defense counsel can demonstrate an understanding of the plaintiff's position, it is more likely that plaintiff will listen to and understand the positon of the defense.

With this in mind, one of the main goals of the mediation should be to allow the plaintiff to share his or her story so that they can feel heard. To further achieve this result, defense counsel can state what is believed to be the strengths in the plaintiff's case (e.g. stating that the plaintiff makes a good witness, plaintiff has a good lawyer etc.)14 Once the plaintiff feels they has been heard, defense counsel can proceed with "...and this is our position".15 In approaching the conversation this way, the plaintiff is much more likely to understand the positon of the defense, as opposed to the defense immediately rejecting the claim for mental illness or chronic injury.

Conclusion

In mediations involving mental health or chronic pain claims, defense lawyers are often presented with conflicting and inconclusive medical evidence. The result is that they are being prompted to rely on the accounts of the plaintiff. However, these invisible and subjective injuries should not be readily dismissed. This may result in increased claims against the insurer. In Fimiani v Liberty Mutual Insurance Company, a special award was made against the insurer for unreasonably withholding benefits and not accepting the plaintiff's claim of ongoing pain.16

Instead, if settling the dispute is the goal, then defense counsel should not be openly dismissive of the plaintiff's injuries, but instead make the plaintiff feel heard by employing the tactics discussed above. If the defense does not believe the claim to be genuine, it would be prudent to rely on medical evidence, expert reports, or surveillance rather than resorting to direct attacks on credibility.

Footnotes

1 Chronic Pain, the Dilemma for Defense - Nova Scotia Barristers' Society Archives, online: Nova Scotia Barristers' Society

2 Quattrocchi v State Farm (September 1997), OIC A-006854

3 Roger Fisher & Willam Ury, Getting to Yes: Negotiating Agreement without Giving in, 2d ed (UK: Penguin Group, 1981) at chapter 2.

4 David Alcorn, "Mediation and the Psychological Injured Plaintiff" (1996) 2 QUT 162 at pp.168-169.

5 Supra note 4 at chapter 3.

6 Supra note 5.

7 Ibid at 170.

8 Supra note 4 at chapter 5.

9 Supra note 5 at 170.

10 Michael Carbone, Mediation Strategies: A Lawyer's Guide To Successful Negotiation - Mediate (April 26, 2016)

11 Ibid.

12 Jeff Kichaven, When Logic Just Doesn't Work - Mediate (July 2005)

13 Jim Bleeke, Mediation Strategies: What Plaintiffs Really Want

14 Ibid.

15 Ibid.

16 Fimiani v Liberty Mutual Insurance Company (11 January, 2000), FSCO A971518.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions