On paper, this looked like a case that ought to settle.
The claimant had suffered a serious injury at work. Liability appeared difficult to dispute. The parties were not far apart on valuation. Yet negotiations had made little progress.
The claimant instructed solicitors. There was no substantive response to the letter of claim and proceedings were issued. Solicitors acting for the employer’s insurers asked for settlement proposals, but none were forthcoming. The employer’s solicitors found this a little puzzling but agreed to mediation.
As arrangements were being made, the claimant’s solicitors asked for the claimant’s manager to attend the mediation. They explained that the claimant felt little would be achieved if the manager was not there and that he wanted the company to face up to what had happened. The manager agreed to attend, accompanied by solicitor and counsel.
Preparation for the mediation was straightforward. Liability appeared relatively clear. The parties were not a long way apart on quantum. It was apparent from pre-session discussions and the claimant’s position statement that he remained upset about the accident and its consequences. Given the circumstances, that did not seem unusual.
What happened at the opening joint meeting, however, took everyone by surprise.
Counsel for the claimant spoke first and briefly explained that his client’s objective for the day was to explore a reasonable settlement.
I then asked the claimant whether he wished to add anything.
Immediately he stood up.
“I do want to say something.
“The accident damaged my leg. It will never be the same again. You know from the medical reports that I will never go back to the work I was doing before. I will never ride in off-road competitions on my trial bike again.
“I can get over those things. I am lucky. I am made of strong stuff.
“What I cannot get over is how you treated me.”
He pointed directly at his manager.
“No contact after the ambulance took me away. No contact while I was in hospital. No contact with my wife. Just a letter through the post explaining my dismissal on health grounds and information about the pension scheme.
“But the worst thing was what happened afterwards. When I contacted my mates after I got out of hospital, they told me they had been advised not to speak to me.
“I think that was disgraceful”
“That’s it. I’ve said my piece.”
The meeting ended shortly afterwards and the parties returned to their separate rooms.
Discussions then focused on settlement in a way that had not previously been possible. The claimant remained entirely reasonable throughout. The issues of liability, causation and quantum had not disappeared, but they no longer had to compete with the claimant’s frustration at feeling ignored and abandoned by his employer.
The manager offered to come to the claimant’s room to apologise. The claimant politely declined.
About an hour later, the case settled.
What are the takeaways?
1. Personal injury claims often involve compensation, but the dispute itself may involve much more than compensation.
The claimant’s legal claim was about the consequences of a workplace accident. His dispute with his employer was broader. The opportunity to express his concerns directly appeared to remove a significant barrier to settlement. Once he had said what he wanted to say, he was content to focus on the legal issues and consider his advisers’ recommendations.
2. Where a claimant feels a strong need to be heard, failing to provide that opportunity can make settlement discussions more difficult.
Lawyers often focus, quite properly, on liability, causation and quantum. Yet some claimants arrive at mediation carrying frustrations that have little to do with expert evidence or schedules of loss. If those concerns remain unaddressed, progress on settlement can become harder.
3. Preparation matters.
Looking back, I suspect that my current pre-mediation practice would have uncovered more of the claimant’s frustration before the mediation. I would still have wanted him to speak directly to the employer, but I could have helped the defendant’s team prepare for what was coming. That might have reduced some of the surprise in the room while preserving the value of the conversation.
4. For insurers and employers, mediation can reveal obstacles to settlement that are not apparent from pleadings, witness statements or schedules of loss.
In this case, the claimant’s frustration arose largely from what happened after the accident rather than from the accident itself. Those issues were important to him, but they were not apparent from the litigation documents.
5. Mediation can sometimes help parties address issues that are difficult to explore in conventional negotiations.
The claimant’s comments did not change the legal merits of the case. They did, however, help everyone understand why settlement had proved more difficult than might have been expected from the litigation papers alone.
This case did not settle because anyone changed their view of liability or quantum. It settled because the claimant was finally able to say something that had mattered to him for a long time. Once that happened, the legal issues could be addressed without competing with a sense of grievance that had never previously been acknowledged.
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