Our personal injury practice is essentially about compensation. The victim should of course be compensated for (dis)expenses, that is not exciting. But an accident can have a much more far-reaching consequence, and that mainly concerns a full or partial incapacity for work (missed career, pension damage, etc.), the need for assistance in connection with household chores or chores in the home, or the need to move to a suitable home. It is evident that these are large sums. As indicated by the Supreme Court, we then make a comparison between the situation with and without an accident. The situation with accident is usually not in dispute; it is apparent from the moment the accident occurred. Things get exciting in connection with the would-be situation, how would things have gone in the victim's life without the accident. And then a difference starts to emerge.
In effect, we are reconstructing the victim's future, a reconstruction of a future that could not have happened. As you can imagine, the insurer sees that future as less rosy and there is a simple reason for this. The less favourable this unrealised future looks, the lower the compensation.Now, we have quite a few tools in our toolbox to conduct this discussion. First and foremost, that involves carefully collecting as many puzzle pieces as possible and taking related positions. Often enough, an insurer can be convinced, also because the Supreme Court has ruled that the victim's future should not be subjected to onerous evidentiary requirements. But not always. Then we, as lawyers, can ask the court to make a decision. In the personal injury practice, we have a unique procedure for this, the partial dispute procedure. In a relatively simple manner, the case can then be submitted to the court. This procedure is usually free of charge for the victim. This was also the intention of the legislator, who wanted a low-threshold procedure for the victim when negotiations run aground. And good timing is essential for this, by the way.
I settled a number of cases in mediation again this year. That is a great tool for reaching a resolution. The court cuts a knot and that can turn out favourable or unfavourable. That is the risk of litigation. In mediation, the knot unravels and the parties commit to reaching a solution. This works very well if both parties have the intention to come out. If, after such a day of mediation, the victim drives home feeling satisfied that the case has been brought to a solution, then our mission has succeeded .
Although not all insurers are open to mediation and prefer to let the court decide, it is increasingly common for us to sit down with a mediator. I see a tendency, especially in long-term cases, for insurers to be more willing to opt for mediation at some point. After all, no one is waiting for protracted personal injury cases. I am very much in favour of it.
Mr Nino Pennino
