Another procedure in our Supreme Court Rules to encourage settlement is mediation. This is a process where the parties voluntarily agree to meet before a mediator to try and resolve the claim.
The mediator has no power to force the parties to make offers or settle, the mediator’s role is to facilitate the negotiation process as a neutral third party. This process has been very successful, so much so that our Rules now allow for mandatory mediation. Either party can compel the other side to attend a mediation in good faith to try and reach a settlement. This is done by filing a Notice to Mediate and sending it to the other side within certain time limits.
Most ICBC court actions are resolved by negotiated settlement rather than trial. Indeed, our rules are designed to encourage the parties to settle, as our court system would collapse if too many cases went to trial, because of the costs and lack of availability of courtrooms and judges. So, some procedures have been implemented in our rules to promote settlement.
BC’s legal system is designed to encourage settlement. BC has a “loser pays” system, where the loser of a lawsuit pays a penalty to the winner. This is referred to as ‘costs’, but it is something of a misnomer. The ‘costs’ are not your actual costs, they are calculated based on the number of steps taken in the lawsuit and the complexity of those steps. However, if you were injured and not at fault for the accident, it would be rare for the court to deem you the ‘loser’ at trial, even if you do not receive everything that you claimed. As long as you receive some damage award, you have technically won the lawsuit.
The Formal Offer to Settle Your ICBC Claim
Another procedure designed to promote settlement is the Formal Offer to Settle. Under our Rules, either the plaintiff or defendant can send a Formal Offer to the opposing party. If the offer is rejected and a trial ensues, the court cannot be told of the offer (so not to be influenced in deciding the appropriate award). If the court award is equal or less than the Formal Offer made by the defendant (rendering the trial a waste of time and expense) the defendant is entitled to recover all of the costs and disbursements incurred from the date the offer was sent until the conclusion of trial. Further, the defendant will not have to reimburse the plaintiff for all of his/her costs and disbursements. These costs can have a huge impact on the award and really raises the risks of going to trial, thus encouraging settlement.
Settle or Go To Trial?
The most important decision you will confront in your ICBC action will be whether to settle or go to trial. Normally, this is not an easy decision, and a lot of factors come in to play. Settlement involves compromise, and trial involves risk, as the outcome can never be guaranteed. You should hold off on settlement until you have recovered or reached your maximum level of recovery. It will rarely be in your interest to settle early. It takes time to develop your claim to its maximum potential.
At Simpson Thomas & Associates, we do our utmost to get the best possible results, whether it means negotiating a settlement or going to trial. Our lawyers are all skilled negotiators who bargain hard on behalf of our clients. If you are looking for such a lawyer, give us a call.