Although mediation of personal injury claims is common in the US, in the UK, mediation is used in less than 2% of personal injury claims.  This article considers the suitability of mediation for personal injury claims and provides tips for improving the chance of settlement.

Mediation and Personal Injury

In mediation, the parties to a dispute sit down with a neutral third person (the mediator) who is trained to help the parties come to a mutually satisfactory agreement. A settlement is reached only if all of the parties agree to it. Furthermore, nothing a party says during the mediation can be used by the other party in later stages of the litigation if the dispute isn't settled. The process is more informal than litigation and the process is quicker and usually much cheaper than taking a dispute to Court.

Mediation allows a Claimant to sit in the same room as the insurance company case handler, and thus puts a human face to the insurance company's file. In addition, a better understanding of the injuries and effects on the Claimant's life can be gained at the mediation. Mediation will also get the Defendant's solicitor and insurance case handler to put special effort into the Claimant's file, which increases the likelihood that they will try hard to settle the matter. In addition, there will be the involvement of the trained mediator to encourage a break in the deadlock.

The mediation may also be the first occasion that a Claimant physically meets their solicitor and/or barrister in the UK. This will also give the solicitor and/or barrister an opportunity to assess how the Claimant, and indeed any other attending witnesses, may perform at trial if the claim does not settle. It also gives the Claimant an opportunity to consider how their solicitor/barrister performs.

Claimants in personal injury claims are not typically experienced in the litigation process. As such, a Claimant's solicitor may wish to discuss with their client what to expect from the mediation. Often there will be a joint opening session, with all parties meeting in the same room with the mediator. The mediator will often ask the parties' lawyers to make an opening statement. Sometimes a Claimant or indeed a Defendant, may also speak. After the opening session, the mediator will usually meet with a party (often the Claimant and his or her lawyers) before meeting with the other party, typically the Defendant's Insurer (and their Solicitor/Barrister and sometimes the Defendant). There will often follow a process of shuttle mediation, with the mediator meeting the parties in separate rooms as the negotiations progress.

Claimants can expect:

  1. low offers at first. The Claimant is likely to put offers too high and the Defendant is likely to be putting offers which are too low to begin with. Be patient and let the negotiation/mediation proceed at its natural pace;

  2. the process to take time. If without prejudice discussions have reached a deadlock prior to the mediation, it should be no surprise that the process of requesting and obtaining information and putting and considering offers during the mediation will take some time;

  3. to compromise. If a settlement is to be reached, concessions are going to be needed from both sides. Whilst both parties are likely to be in 'advocacy mode' at the start of the mediation, progress is only likely to be made once both parties move to a 'problem solving mode';

  4. to hear unfamiliar legal terms during the mediation. Solicitors/barristers can explain these, and may wish to discuss terms and issues with the Claimant in advance of the mediation;

  5. the Defendant to want to settle the whole claim and not just an issue of liability, with quantum still to be resolved. The Defendant may also be wanting to settle the issue of costs too. Accordingly, Claimants and their solicitors may want to carefully consider what evidence may be required prior to mediation and also what assumptions, if any, can be made about what future expert evidence might say, and how this affects the analysis of any offers;

  6. an agreement at the mediation (or sometimes shortly afterwards) or a trial.

Good preparation can improve the chances of a settlement being reached at the mediation. Such preparation includes:

  • considering whether further evidence is going to have to be obtained prior to the mediation;

  • considering whether the other side needs to provide certain disclosure/evidence prior to the mediation;

  • undertaking a commercial and technical analysis of the claim, and also consider an analysis from the Defendant's solicitor's perspective;

  • considering whether a barrister ought to attend

  • checking availability of attendees for the mediation;

  • in certain cases considering whether any expert, for instance a forensic accountant should be asked to be available by phone if questions arise;

  • discussing with the Claimant what he or she would like to say, if anything. Some Claimants want to explain what effects the injury has had on them and their family. Consider including injury photographs that might be useful;

  • considering who should attend with the Claimant. For instance, will the Claimant be involving his or her spouse, partner or another family member in the decision-making process? If so, then consideration should be given to whether it would be preferable to have that person at the mediation;

  • checking with the Defendant's insurer/solicitor that the representative attending will have sufficient authority to settle;

  • considering the mediation agreement/agreement to mediate;

  • preparing a position statement. Mark the position paper ''For the purposes of mediation only. Without Prejudice and Confidential'. Have regard to who the position paper is being written for. Is the real audience the mediator, the solicitor/barrister on the other side or the other side/insurer? Aim the message at him or her. Remember that a position paper is not the same as a Court skeleton argument;

  • considering whether a document should be prepared for the mediator's eyes only;

  • considering whether a mediation bundle is needed and what it should contain. Do not argue with the other side about the contents as anyone can send what they want to the mediator;

  • preparing a draft settlement agreement/Consent Order/Tomlin Order; and

  • preparing details of the costs. Indeed, why not use the mediation to agree damages and costs, with the costs being paid with the damages, rather than some months later?

The Courts have shown in a number of cases, including the 2014 decision of Phillip Garritt-Critchley & Others v Andrew Ronnan and Solarpower PV Limited, that they are prepared to be creative with costs awards against parties that unreasonably refuse to participate in mediation or other forms of alternative dispute resolution. Don't refuse to mediate because you consider that you have a strong case. If your opponent's case is stronger than you think, it may be preferable to find out in the mediation room rather than the Court room.