Law Times

Law Times • apriL 4, 2016 Page 13 www.lawtimesnews.com Brokers provide guidance at mediations Structured settlements bring order to payment plans BY MICHAEL MCKIERNAN For Law Times P hil Thorpe likes to call himself the "other neutral party" at mediations in personal injury matters. Almost every day of the year, Thorpe or one of his colleagues at McKellar Structured Settle- ments in Guelph, Ont., which provides products that divide large court settlements into reg- ular, tax-free installments, can be found in hotel and conference board rooms across the province assisting at mediations. "We're the only ones there like the mediator in that we're not on one side or the other," says Thorpe, a principal at McKellar. "Our primary objective is to help achieve a settlement." Barry Chobotar, the manag- ing partner at Hamilton, Ont.- based Henderson Structured Settlements, says his invitations to mediations are split fairly evenly between counsel for plaintiffs and insurance firms, and that both sides can benefit from his presence. He says it's preferable for him to be physically present at the me- diation due to the f luidity of ne- gotiations and the need for both sides to know what alterations to the term of a structure, or the total amount invested, will mean in practice when the installments are ultimately doled out in the years to come. "Rather than writing a report, where you're working with hy- potheticals, you can provide up- to-date numbers that are valid as of that day. If the assumptions change, you can have new num- bers to them within a few min- utes," Chobotar says. At Baxter Structures in To- ronto, the firm's president, Kyla Baxter, says her on-site projec- tions can help bring meaning to settlement offers. "Often, claimants are stuck on a figure, like $1 million, for example. Yet, often, they don't know what that number can actually do for them and their future needs," she says. "Having a structure broker at a mediation allows them to see the future projections so they can plan and help decide if that figure being offered is in fact enough to fulfil their future needs." In an ideal scenario, Baxter says she will already have met the plaintiff before a mediation, allowing her to build a rapport with them. "Having a structure broker there is a familiar face that calms the client and allows them to feel comfortable asking questions that perhaps they may not feel as comfortable asking their lawyer," she says. When settlement is near, Chobotar says brokers can help "bridge the gap" between the de- fence's offer and the plaintiff 's de- mand with minor adjustments to the frequency and size of payouts from the structure. Brian Goldfinger, a Toronto personal injury lawyer, says he often finds a broker's presence at mediation helpful, especially when one or both parties has al- ready expressed a preference for using a structure to pay out the settlement. "On the other hand, the sword can be a bit double-edged," Gold- finger adds. "Sometimes, clients have the idea that they will be getting a big lump-sum payment at the end of a trial. If they don't understand the concept, they might perceive it as a hurdle to their money." However, Chobotar says me- diations can provide a convenient opportunity to sit down with skeptical claimants, and talk them through the process. Once they understand the certainty of the payments and their tax-free na- ture, he says many become more comfortable with the concept. "There's a lot of downtime during a mediation, so there are plenty of opportunities to speak with the injured party and their family, and provide them with a bit of an education on struc- tured settlements," says Cho- botar. "Some come in stone cold on structures, so you have to start from scratch. For others, their lawyer may have brought it up at the beginning, so they have a bit more knowledge." Even if the mediation is ulti- mately unsuccessful, Chobotar says it is still worth his time if it familiarizes the plaintiff with structured settlements. "The sooner the concept is introduced, the easier it is for the claimant to make an educated de- cision. If it settles two years later at a pre-trial, at least that's not the first time a structured settlement is sprung on them," he says. In cases where settlements are actually achieved through me- diation, Thorpe says his presence can save a number of potential headaches further down the road by forcing the lawyers for both sides to focus on specifics of the structure that may otherwise be forgotten, such as ownership and any potential assignment, at the point of settlement. "We like to make sure all the structure-specific details get in- corporated into the minutes of settlement," Thorpe says. "You don't want to forget any of those, because it could become an area of disagreement after the fact." LT structured settlements What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Baxter_LT_Oct7_13.indd 1 13-10-01 4:03 PM Brian Goldfinger says he often finds a structure broker's presence at mediation helpful. Our primary objective is to help achieve a settlement. Phil Thorpe

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