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Mediation, Personal Injury

Mediation favoured for resolving personal injury claims

Without contingency fees, people would not otherwise be able to afford a lawyer, says Toronto mediator Victoria Romero

Those suing for pain, suffering and economic losses need to prove they are not at fault, that their injuries are severe and permanent and prevent them from performing an important aspect of their lives, such as working, she tells AdvocateDaily.com.

Because they are unable to work, they can’t afford to pay a lawyer, Romero says. "On a contingency fee basis, the lawyer picks up the cost of carrying the case and is paid a percentage of the amount awarded at the end," says Romero, principal of VR Law.

With small- and medium-sized claims, Romero says the amount awarded may only leave enough for the accident victim and won't cover the lawyer’s costs. In those situations, the accident victim may simply not be able to find a lawyer to take the case.

The situation is complicated by the deductible, which applies to personal injury cases, she says.

"The award made by a court is not what the accident victim actually receives. A deductible, which has been increasing and is now indexed, applies to these awards," Romero says.

“Insurance companies don’t have to pay the first $37,385.17; they pay for what comes after,” she adds. “Plaintiffs are no longer going to be able to find representation because lawyers won’t be able to afford to take on those cases.”

Mediation can be very effective in bringing closure to a case, Romero says, noting that the introduction of contingency fees played a key role in her decision to practise personal injury law several years ago.

“I was helping the person who, without a contingency fee program, would not be able to hire a lawyer and get compensation for what they had lost and suffered," she says. "That was an accomplishment and I see mediation as an extension of that service. I completely identify with the barriers a person has when trying to decide whether or not they want to settle.”

Her experience in personal injury law, she adds, augments her role as a mediator trying to bring resolution to a case.

Romero says mediation is also attractive because it gives participants an increased level of control without being subject to the delays of the courts. 

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