Mediation And Arbitration In Personal Injury Law

By Michelle Arzaga | April 28, 2013

What happens if your insurance company disagrees that you are still entitled to accident benefits?

Toronto personal injury lawyer Michelle Arzaga discusses mediation and arbitration procedures in personal injury law, with a focus on the Financial Services Commission of Ontario.

Watch the video and read the transcript below.

S: Back again at Pace Law Firm, with Pace Lawyer, Michelle Arzaga. Michelle thanks for coming back. We’re going to talk today about mediations and arbitrations, what does it even mean? Michelle, I know that on our blog and the Facebook page, we’ve been posting stuff about our FSCO updates, FSCO decisions and the word ‘mediation’ keeps coming in there. What is a mediation, when would it happen?

00:22 Michelle Arzaga: Just to back you up a little bit, I know that you say FSCO, and I’m sure I’ve got a lot of clients that even ask me what FSCO means, it’s short form for the Financial Services Commission of Ontario.

00:32 S1: Okay.

00:32 MA: So if you start from the beginning what happens is, is that if you were involved in a car accident, you apply to your own insurer for accident benefits, and for the most part, your own insurer will approved those benefits that you are entitled to. There are times where they will deny it outright, and most of the time they will approve. But at some point, plaintiffs can expect to get those benefits terminated and the insurer may disagree with the plaintiff as to whether or not he or she is still entitled to those benefits. When that dispute arises, then plaintiffs have recourse and they can apply to the Financial Services Commission or FSCO as it’s better known as and apply for what’s called a mediation. And that’s where FSCO assigns someone called the Mediator to help the plaintiff and the insurer get back on the same page because there’s obviously dispute over an entitlement to benefits. So that’s what it’s called, and unfortunately in what you’ve been seeing in the news these days, is that there is definitely a backlog, there aren’t enough mediators and there are simply too many disputes between plaintiffs and insurers over whether or not the plaintiff is entitled to further benefits from their own insurer.

01:43 S1: So what does the mediation room look like, what happens during that mediation?

01:48 MA: Okay. So you can have mediations either by telephone or in person.

01:52 S1: Oh! Right.

01:53 MA: And when you do have it in person, you have it at the FSCO offices, which is at Young and Shepherd or North of there. And the mediator comes into the room or by telephone, all the parties are involved, your lawyer is involved. And what they do is they talk about what the issues are and what the medical documentation is and the insurer basically lays out their position as to why they’ve made the decision that they have. And then the plaintiff’s lawyer makes their position known in terms of why the position is, is that there is a further entitlement to benefits. The mediator doesn’t make any orders at a mediation. What it is, is the mediator tries to facilitate the conversation and tries to see if there can be some sort of compromise or if we can get the insurer to agree to extending the benefits or continuing or reinstating the benefits.

02:40 S1: Now, let’s go a step further. What happens if the mediation breaks down and no one agrees on anything?

02:46 MA: Now when that happens, you can consider the mediation failed, either if it’s in person or on the telephone, the mediator will then file a report, essentially setting out when the mediation was held, what the issues were in dispute, and will also indicate, whether or not it’s settled or whether or not it failed. And if it fails, it doesn’t mean that it ends right then and there for the plaintiff. It doesn’t mean that you’re no longer entitled to benefits. What it means is, is that you’ve got to further, call it… We can call it an appeal, file for something that’s called an arbitration through the Financial Services Commission or go by way of court proceedings through the Superior Court.

03:26 S1: Now we did talk about this a little bit before the interview. I asked you which one do you like better. What road do you like to go down, is it the court road or going to the arbitration route?

03:36 MA: Well with respect to accident benefits and disputes with your own insurer, there is something that’s called the Statutory Accident Benefits Schedule. I mean it’s quite a particular, specific type of legislation, and you need to be specialized in it and you need to know it. You want to have people making decisions on it that know what they’re doing and know what that law is about. And the Financial Services Commission, they have arbitrators, who can make decisions on and apply the law in the proper way. So, for me in my own opinion, I actually prefer to file for arbitration through the Financial Services Commission when a mediation has failed.

04:13 S1: Arbitration or going to court, same time period? Length of time that the process takes, or what?

04:18 MA: These days, it looks like our courts are just as backlogged as FSCO, so it looks like the same time period, although FSCO is trying very hard to make that backlog, and then make that wait much less, but these days you are waiting an inordinate amount of time, to be honest.

04:37 S1: Average? What are we talking about?

04:38 MA: About one to two years.

04:39 S1: One to two years?

04:39 MA: Yeah, for arbitrations you make it sooner than that.

04:42 S1: Wow.

04:42 MA: Yes.

04:43 S1: When it gets to that stage, is that, that’s binding. You said the mediator doesn’t make any hard and fast rulings, but the arbitrator that’s different, isn’t it?

04:52 MA: Right, so when you do file for arbitration or if you go by way of court proceedings, the decision then becomes that of the arbitrator or of the judge, if it’s… If it goes by way of court proceedings, so, yes. You are giving the decision to the arbitrator to look at the issues in dispute and then make the decision that’s binding.

05:09 S1: Excellent. Okay, so for more information on mediation and arbitration at FSCO, be sure to call Michelle and also email her at the email address you see on the… On the screen. Michelle, thanks again for stopping by.

05:19 MA: Thanks.

05:19 S1: I’ll talk to you again soon.