There are three primary criteria to determine the appropriateness of the parties and case for restorative mediaton. 

1. Determine whether the facts of the situation are clear enough so that all participants agree that one or more persons are responsible for causing injuries to another person.  If so, restorative mediation  may be appropriate and the parties should be screened to determine if the process is viable.
2. Determine whether one or more of the participants are angry about what happened and would like to have an apology, an explanation about why it happened, and how it can be prevented in the future.
3. Determine if the relationship between the participants has been negatively affected and whether they would like to repair or maintain the former relationship.

 

A critical element to insure the success of the restorative mediation process is to screen participants prior to deciding whether to hold a restorative mediation session. Screening interviews should be conducted with the injured party, the responsible party, and the insurance representative. Below are a series of questions to begin this process. Screening is generally done through a telephone interview but could also be conducted in person by the attorney representing one of the parties.

Responsible Party Screening Interview

• Ask what happened.
• Are they willing to take responsibility for causing the accident/injury?   →  If yes, appropriate for RM.
• Are they willing to meet with the injured party and their supporters?  → If yes, appropriate for RM.
• Would they like their insurance company to help repair the harm, damages and losses?  → If yes, appropriate for RM.

Injured Party Screening Interview

• Ask what happened and what injuries were sustained.
• Would it be helpful if the party responsible took responsibility for their actions? If so how? → If yes, appropriate for RM. 
• Would they be willing to meet with the responsible party for purposes of having them accept responsibility and to discuss the harm, damages and losses suffered?  → If yes, appropriate for RM.
• Would they like to meet with the responsible party’s insurance company to determine how to repair the harm, damages and losses? →  If yes, appropriate for RM.

Insurance Representative Screening Interview

• Do they agree that their company is responsible for compensating the injured party for any  harm, losses and damages? →  If yes, appropriate for RM.
• Are they willing to meet with the injured party and their supporters to discuss what resources are available to repair the harms, damages and losses? → If yes, appropriate for RM.
• Will they have authority at the meeting to resolve the claim if appropriate? →If yes, appropriate for RM.

• Ideally occurs within 30-60 days
• Pre-meeting screening is required
• Meeting should be attended by all willing parties and supporters
• The participants will discuss the incident, acknowledgments, and offer apology if appropriate
• Supporters and attorneys may attend
• May involve payment of immediate needs by insurance company
• Usually not a final resolution
• Parties agree to cooperate towards settlement

"Early intervention is important in reducing and managing the anger, fear and financial needs after a personal injury or medical error."

Hon. Joe Cannon, District Judge, Ret.

• Pre-meeting screening required
• Attended by all parties and supporters
• Part 1 – discuss incident, acknowledgment, apology
• Part 2 – discuss damages, injuries and losses
• Full and final settlement

Confidentiality of the process and the acceptance of responsibility by the wrongdoer may be a concern, primarily for defense lawyers and the insurance companies. Most states have laws ensuring that settlement conferences are confidential.  If confidentiality is an issue, it is suggested that the early intervention process be held as a normal settlement conference.  It is clear that utilizing a restorative mediation component as part of the traditional settlement conference would also be confidential.

It may be appropriate for both plaintiffs and defense attorneys to rethink the desire to keep apologies and acknowledgments out of court. Research has shown that most people very much need and appreciate an apology. Hiding it may not be necessary or appropriate.