Clinical negligence litigation is often discussed through familiar headings: liability, causation, quantum and costs. Those issues matter greatly. They usually frame the legal dispute, the expert evidence, the pleadings, the schedules, the counter-schedules, the Part 36 offers and the advice given to clients.
But they do not always capture the whole dispute.
This mediation illustrated how the mediation process can operate on a wider canvas.
The case had already been the subject of a joint settlement meeting. The parties had not reached agreement. Trial was imminent, with a time estimate of more than a week. The claimant’s schedule of loss ran to several million pounds. The total figure in the counter-schedule was several tens of thousands. There was a substantial seven-figure gap between the parties’ Part 36 offers. On a conventional litigation analysis, this was a case with formidable disagreement about causation, quantum and risk.
What changed was not simply that the parties negotiated again. What changed was the setting, the preparation, and the range of issues that could be explored.
Before the mediation, the mediator held confidential discussions with each solicitor. The legal teams prepared and disclosed thoughtful position statements. The claimant prepared an impact statement. The claimant also had a preliminary conversation with the mediator, which helped her understand the process and reduced some of the anxiety of the day itself.
That preparation mattered. It meant that the mediation was not merely a late-stage bargaining session. It became a calm, structured opportunity to explore not only the legal merits, but also the human, practical and decision-making factors that influence settlement.
The brief joint open meeting on the day of the mediation was important. The claimant was able to meet the defence representatives. They were able to see and hear her. Defence counsel spoke to her directly and made an apology for one aspect of liability, while other issues remained disputed. That moment did not resolve causation or quantum. But it changed the atmosphere. It reminded everyone that the claim was not only a file, a schedule, a counter-schedule or a trial risk. It concerned a person’s life.
For lawyers and claims professionals, this is one of mediation’s distinctive contributions. A mediation can hold together several conversations at once:
- the legal conversation about liability, causation and quantum;
- the risk conversation about evidence, experts, judicial assessment and trial uncertainty;
- the practical conversation about costs, time, trial preparation and finality;
- the human conversation about voice, acknowledgement, anxiety, dignity and closure;
- the strategic conversation about what each party needs in order to move.
In this case, causation remained a live issue. The mediator chaired a legal meeting, without the claimant, so that the technical issues could be addressed efficiently. That discussion sat alongside, rather than displaced, the claimant’s opportunity to be seen and heard. This is a useful distinction. Mediation does not require lawyers to abandon legal analysis. It allows legal analysis to take its proper place within a broader settlement conversation.
The subsequent negotiation was measured. Offers were thought through. The mediator moved between the parties. A seemingly impassable gulf narrowed. By the end of the day, the parties had signed a draft Tomlin order and agreed a payment on account of costs.
The settlement was partly explained by developments in the evidence. But that was not the whole explanation. The mediation process itself contributed. The preparation contributed. The moderate tone of the position statements contributed. The claimant’s participation contributed. The apology contributed. The willingness of each side to help the other side make a settlement decision contributed.
Mediation is not simply a softer version of a joint settlement meeting. Nor is it merely a different room in which to exchange offers. At its best, mediation creates a disciplined setting in which parties and lawyers can examine the full range of factors that affect settlement decisions: legal merits, litigation risk, emotional burden, appetite for trial, need for explanation, desire for voice, reputational concerns, costs, uncertainty, timing, fatigue and the value of resolution.
Liability, causation and quantum may define the legal dispute. They do not necessarily define the whole dispute. This mediation showed how, when carefully prepared and skilfully conducted, mediation can help parties move from legal argument to good decision-making.
