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Case Study: What The Claimant Really Wanted To Say

Trust ADR — Wed, 17 Jun 2026 12:09:03 GMT

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.

Case Study: Bridging A Seemingly Unbridgeable Gap

Trust ADR — Wed, 17 Jun 2026 12:07:26 GMT

“Go back and ask for a better offer!”

That was the immediate response from counsel for the family of an injured child when I relayed the defendant’s opening offer in a traumatic brain injury claim in which I was mediator. He added that, unless the next offer was significantly better, he would call the mediation off.

That reaction was understandable. There had recently been a joint settlement meeting, and the atmosphere had become tense once it was clear that the parties’ valuations were far apart. The defendant’s position relied heavily on medical evidence suggesting a good recovery and a real prospect of full recovery with minimal residual symptoms. The claimant’s team saw the case very differently.

Rather than simply return to the defendant’s room and ask for an improved offer, I asked one question:

“Why?”

The answer mattered. The claimant’s solicitor explained, in detail, his work with the family over several years and what he had observed about the claimant’s recovery. The claimant had improved, but with enormous support from the extended family. Without that support, the solicitor said, the claimant was a different person and symptoms quickly re-emerged. Specific examples were given. A statement made by the claimant to the defendant’s medical expert was also explained; once context was added, its meaning changed significantly. Counsel then identified the parts of the claimant’s medical evidence that supported this account. He also acknowledged that, on the defendant’s evidence, he could understand why the defendant had taken the position it had.

That was the important moment. The issue was not that either side abandoned its view of the case. It was that the mediation created an opportunity to understand more clearly why the other side saw the evidence differently.

With the defendant’s agreement, the claimant’s solicitor and counsel came with me to the defendant’s room. I asked them to repeat what they had just told me, as though they were explaining it to me for the first time. They addressed their comments to me, not to the defendant’s team. This helped avoid the feel of a courtroom exchange or a direct confrontation.

The discussion went well. Counsel for the claimant then turned to defendant’s counsel and quietly said that, if it were possible to negotiate on the basis just outlined, he was confident that settlement could be reached. A calm discussion of the medical evidence followed. No reference was made to the defendant’s opening offer.

About 90 minutes later, agreement was reached on a settlement which claimant’s counsel was content to recommend for court approval.

The claimant’s solicitor later confirmed that approval had been given. He added that, although he had thought the case was strong enough to proceed to court after the joint settlement meeting did not make progress, he knew the claimant and family were keen to avoid the stress of a hearing. For that reason, he had recommended mediation.

What are the takeaways?

Liability, causation and quantum remain central to settlement discussions. This case did not settle because those issues were ignored. It settled because they were explored in a setting that allowed a fuller discussion of the evidence, risk and context.
Effective representation remains important in mediation, although it may take a different form from representation at trial. Here, the claimant’s legal team did not merely repeat a pleaded case. They explained why the evidence mattered and how it might be understood.
Early offers can sometimes make settlement harder if they arrive before the parties have had an opportunity to discuss the reasons behind their respective valuations. The opening offer here nearly ended the process, but it also revealed that more work needed to be done before numbers could sensibly move.
A large valuation gap is not necessarily a reason to avoid mediation. It may indicate that the parties have very different assessments of risk. Exploring those differences is often precisely where mediation adds value.
For insurers and defendant representatives, mediation can provide an opportunity to test assumptions about the evidence without committing to a change of position. That can be particularly useful in high-value claims where trial costs, uncertainty and litigation risk are substantial.
Mediators are not merely message-carriers taking offers from room to room. Sometimes the useful work is creating a conversation that would be difficult to arrange in ordinary negotiations.
The mediation process can reduce reactive devaluation: the tendency to discount what is said simply because it comes from the other side. In this case, the structure of the conversation helped the defendant’s team hear the claimant’s analysis without the same defensiveness that can arise in direct exchanges.
Lawyers may relish the trial. Lay parties often do not.

This case did not settle because anyone gave up on legal analysis. It settled because the process enabled the parties to understand the evidence, risks and human consequences of the dispute more fully than had previously been possible.

Case Study: Multi-Party Claims, Mixed Clin Neg & Accident Claims

Trust ADR — Wed, 17 Jun 2026 12:05:41 GMT

The Claimant brought a claim for damages resulting from a long delay in diagnosing an unstable fracture to his spine which had occurred as a result of an accident at work. Before the diagnosis had been made, he had been seen by two successive NHS Trusts and a senior surgeon. He had also developed a serious infection in his spine which (it was agreed) was not attributable to any delay in diagnosis.
Both his employers and the two Trusts admitted liability to some degree but subject to allegations of contributory negligence.
The mediation therefore involved 5 distinct parties. A willingness to settle existed at the outset but no individual party was prepared to make proposals.
The task of the mediator in this case was to use the confidentiality of the mediation to visit all the parties individually in order to (a) encourage the Claimant to share their expectations with the mediator on a provisional and confidential basis and (b) construct provisional indications of willingness from the Defendants to contribute to a common offer to the Claimant.
The second element of this task was the most difficult. In order to gain momentum only a modest offer was constructed initially which might well, in a conventional Round Table Meeting, have resulted in a breakdown in discussions. However the Claimant was encouraged to respond constructively because it was apparent to the mediator that although the public stance of each Defendant group was resistant to making higher offers, each group separately and privately accepted and maintained that the Claimant would obtain a much higher award, that it should be borne by the other Defendants, but that there were substantial risks that in the absence of settlement.
What appeared outwardly to be deadlock was therefore simply a problem of nudging each Defendant to consider a bigger contribution on condition that others did likewise. This process had to be repeated several times during which the Claimant might well have walked away. However, it was apparent to the mediator at each stage that one Defendant was prepared to go further to settle the matter than the others. Without indicating this to the Claimant or promising a higher offer the mediator was able to maintain encouragement to the Claimant to persist in negotiation and to be “brave enough” to disclose directly to the Defendants his realistic settlement expectations - it being clear to the mediator but not to any of the parties that the real gap between those expectations and what at least one Defendant recognised to be the zone of settlement was not great.
Disclosure of his settlement figure by the Claimant was something which his advisers were reluctant to do but, having done so, it then provoked a more constructive reaction from the Defendants who could then see that settlement was possible and that the differences between them over apportionment were outweighed by the advantages of doing a deal.
Once the Defendants parties had begun working together, they seemed to be able to grasp more clearly that compromise amongst each other was worthwhile in order to obtain an overall settlement – which was then achieved at a level which all parties appeared to view as being satisfactory.

Case Study: Conflicting Legal Arguments & Expert Evidence, Reality Testing

Trust ADR — Wed, 17 Jun 2026 12:03:12 GMT

Y, a lady who was 22 years of age, looked set for an excellent career in the armed forces. Y was told she needed, however, a minor operation to deal with what was described as a routine sports injury. No complications were foreseen or explained. No alternatives were suggested or risks discussed. It was all treated as a simple option. Except it was not.

First, there was apparently a wide range of opinion between the four experts later instructed as to whether operative intervention or conservative treatment was to be preferred. The experts apparently agreed that conservative treatment carried no particular risk - Y’s issue would either get better or it would remain the same. It would not worsen.

Second, it was also said to be agreed evidence from the experts that the operation, using regional anaesthesia, did carry some risk of complications, both negligent and non-negligent. It was accepted by the Trust that these were not explained to Y but the Trust’s experts both reportedly said that it was not necessary under Bolam to do so. The alleged failure under Montgomery cited by Y was not addressed by the Trust other than by denial.

The Trust alleged instead that even if the risks had been explained the incidence was so small and the adverse outcome that eventuated so unusual that Y would, keen as she was to progress in the forces, have accepted the risk in any event.

The operation went ahead. The anaesthetist was allegedly negligent or in the alternative simply failed to spot what was happening, and Y was left without feeling in the limb that was being treated. She was medically discharged from the forces without any compensation because, although the MOD had referred her to the Trust, the MOD said that any claim should be directed to the Trust as its supplier of healthcare.

Y directed her claim against the Trust both in common law negligence under Bolam in respect of the treatment and under Montgomery for the alleged failure to provide consenting information on risks, alternatives, benefits, and options. The claim at full value - if Y could prove a full career loss rather than 8-12 years of military service with no pension - was potentially worth £500,000. Although happily Y was once again fully in possession of the use of the limb she was not able to re-join the forces.

The Trust denied liability. It said it relied on its experts, whose evidence was not disclosed, by the date of the mediation, but merely cited in correspondence and alluded to in the pleadings.

Mediation took place with an agreed stay and pre-exchange.

At mediation, no concessions were made in the opening plenary session by determinedly robust counsel for the Trust. This was met with some freely expressed incredulity by counsel for Y. To say more about the following exchanges might risk breaching the confidence of the mediation.

Suffice to summate that, in three hours of private sessions, with robust reality testing of both sides, by a mediator experienced both in clinical negligence work and in armed forces cases, an accord was reach. No admissions were made, but a sum to be paid without prejudice was found that satisfied all concerned. Unusually too, the question of costs was also resolved within the settlement arrangement - including that of the mediation.

Afterwards, all expressed themselves delighted with the outcome which offered certainty to Y and value, and closure, to the Trust. Four hours overall were well spent. Whilst it is not the mediator’s role to analyse the outcome at the time, for the purposes of this case summary, and drawing on his experience in the fields noted above, it seems to the mediator that both parties took very astute and commercial decisions, were well advised and represented, and used the process of mediation to reach a strong risk-averse outcome for all.

Case Study: Claim Arising From Complicated Surgical Procedure

Trust ADR — Wed, 17 Jun 2026 11:04:42 GMT

Summary

This case study demonstrates the financial and human benefits for the receiving party and the paying party that can arise from mediation.

The Parties

The claimant was a teenage boy, and the claim was brought by his father acting on his behalf.

All of the lawyers were specialists. Counsel, an experienced junior and a QC, were both used to acting for either side in clinical negligence claims and to fighting clinical negligence cases at trial. I did not know if they had ever used mediation before. The solicitors were experienced and I had mediated with each of them before.

I think the defendants instigated the mediation.

Circumstances of the Case

The claimant, then a young child, underwent a complicated operation. Things went wrong. The outcome was catastrophic. The defendants had arguments on breach and maintained that if they were unsuccessful on these the claimant had very considerable difficulties on causation. The mediation position papers indicated that each party believed that it had a strong case but acknowledged that the litigation risk was significant.

The stage of the Litigation

The case was pre-litigation.

Following the operation there had been an SUI investigation. This was reported to the parents. They made extensive written comments which were met with a written response.

A formal letter of claim was met with an offer of mediation from the Trust which responded to the claim by a mediation position statement.

Attendees at the mediation

In addition to the claimant’s parents, solicitors and counsel there were a representative from the hospital, a senior decision-maker and the two treating clinicians who had been involved in the operation in question. One of these had had responsibility for the care of the claimant throughout. It was notable that, notwithstanding the circumstances of the case and the entirely understandable emotional reaction of the family to the outcome of the operation, he had continued to treat the claimant and had maintained a professional relationship with the claimant and his family. (The nature and strength of this relationship was such that, unusually and without objection from any quarter, there were private conversations between the clinician and the claimant’s father during the mediation.)

Start of the Mediation

Both parties readily agreed to an initial joint open meeting for introductions and brief opening statements.

The barrister for the claimant made it clear that her considered view was that she would speak for the claimant’s father during the opening and he would not speak. (I outlined the benefits of the father speaking. Counsel noted and accepted my views but her position remained the same.)

On the basis of the pre mediation exchange of correspondence and position papers, the barrister for the claimant suggested that, having “spoken” last through her position statement, it would be appropriate for the barrister for the defendants to speak first during the joint open meeting. This he readily agreed to. He also readily confirmed that there was authority to settle, this basic point being a matter which the barrister for the claimant had requested that I check, so that it could be ascertained that the defendants were not attending for a mere fact finding exercise.

The Joint Open Meeting

The barrister for the defendants opened (as agreed). He outlined the circumstances in relation to breach of duty and causation. He then invited the two clinicians to speak.

The clinicians spoke in turn. Each of them was emotional, to the point of being tearful, and expressed heartfelt sorrow for what had happened. One point they made was that, following this experience, they had considered using a different procedure to the one adopted in the operation, and indeed had tried this subsequently. Their experience, however, was that this simply was not as effective.

The barrister for the claimant then spoke, addressing, primarily, litigation risk. Clearly there were substantial legal differences between the barristers and they discussed, responded and counter- responded in a manner that was calm and dignified, and in keeping with the discussion being witnessed by the family and with what had been said before by the clinicians.

I then made some remarks concluding this session in which I thanked everyone who had spoken adding that, as the independent mediator, this was a solid and most satisfactory start to a mediation. I have been mediating for many years, but I find it hard to recall a more appropriate and fitting opening session.

Negotiations

The “mood music” at the opening session made it clear that both parties were intent on seeking resolution if that could be achieved. In seeking to manage expectations I made it clear to both parties that I was accustomed to such sentiments being expressed only to find that the opening offers were a very long way apart.

Turning to the potential value of the claim, the claimant’s circumstances, disability and prognosis were known about in broad terms, but there had been little forensic exploration of the value of the claim and there was no expert evidence on the subject. (It is not usual for lawyers to discuss a settlement by way of damages when there is no expert evidence.)

In discussion with both parties I mentioned that in my experience, in circumstances such as these, the defendants were usually intent on final settlement for a financial sum whereas claimants were usually insistent that, pending examination of the claim’s value, any settlement would have to be on a percentage basis. I added that a cash settlement was usually the outcome of such a discussion at a mediation.

Negotiations commenced with what I would describe as a ranging offer from the defendants followed by a ranging response. By this mean I mean the defendant made a respectable start, which I fully expected would be significantly improved upon, and the claimant made a cautiously high response, which I also expected to see movement from.

There was then a series of offers, and in fact there were a greater number than I had been anticipating. The early offers were accompanied by messages, information and questions. During the later stage, as is normal, there were figures only.

There was discussion about percentages, litigation risk and the alternative approaches of “top down” ( full liability valuation less discount) and a “bottom up” (the needs of the family).

The litigation risk discussions concentrated on the fact that both parties could lose on liability/causation and in the circumstances of this case there is a known formula for settlement. This is a lump sum sufficiently large that will be life changing for the claimant, that will satisfy a great deal of his needs, and would contrast very significantly with the zero sum that the claimant would receive if he lost the case. Such an approach is sometimes acceptable even though the lump sum might represent a considerable discount from a claimant valuation based on full liability value minus the claimant’s barrister’s view of a proper reduction for litigation risk.

To be added into the mix was the fact that the claimant was a child and therefore an approval opinion would have to be put before the court. To one suggestion that a claimant’s barrister could write an opinion for almost any figure there was the response that barrister had to be professionally satisfied that such an opinion would not be a professional embarrassment when presented to the judge.

Settlement and Closure

Settlement was duly reached.

The claimant room was of the view that the presence of the two clinicians, throughout the mediation, had been most significant and the family requested a closing meeting so that they could thank the defendants and the clinicians. The closure meeting took place, and this was as emotional for the family and the clinicians as the opening meeting had been.

A settlement agreement was signed, subject to court approval.

For me, this was an excellent day for mediation.

For the family it was a difficult day, although much less difficult than going to court. I felt that the discussions were dignified throughout.

For the defendants it was a pragmatic solution. In my experience the defendant camp usually represents a range of views, and each of those involved no doubt have opinions on whether the amount agreed was correct, generous or represented a saving on the likely outcome at court. What is beyond doubt is that this settlement, as well as giving the claimant’s family some financial security, certainty and a termination of the litigation process, also provided the defendants with certainty, elimination of the risk of losing and a very considerable saving on costs.

Case Study: Child. Fatal Claim. Litigant In Person. Extra-Legal Features.

Trust ADR — Wed, 17 Jun 2026 11:01:53 GMT

A claim was made by family, collectively referred to as X. Their child, it was said, had died through a combination of errors in an A&E department of a major hospital. X had been represented but their solicitors had ceased to act.

The child had attended the A&E department and it appeared that various red flags were missed. The child’s father had done his best to attract attention but in the end the child died, so it was argued, from the consequences of the failure to diagnose the unusual condition.

Evidence of breach of duty was balanced. A trial could have gone either way on breach and causation. The damage done to the parents of the child was clear. Anger was profound and there was a professed intention to take the matter all the way. There was no trust on X’s part of the willingness of the Trust to apologise or make things better. Quite literally, no amount of money would suffice.

The mediator, who was very experienced and also a clinical negligence specialist, received a full bundle from the Trust’s solicitors and nothing from X. X did not want to meet the Trust and despite the usual guidance on procedure pre-mediation, X arrived expecting the mediator to decide the case - and probably in the Trust’s favour, as the child’s father had read some criticism of the NHS Mediation Scheme on the website of the law firm formerly instructed by the family. (This was in the early days of the Mediation Scheme.)

The mediator arrived early, was there when all the participants arrived, and in private pre-meetings went through the procedure in his style. Mistrust was evident in X’s room. Disbelief that any progress could be made was clear in the Trust’s room. Nevertheless, the Trust was fully represented with clinicians, risk managers, solicitors and counsel.

Importantly, the mediator had a trainee mediator present as an observer. (Pausing, this is considered to be vital in any mediation where the claimant is unrepresented.)

The mediator managed to persuade (through self-deprecating humour, mainly about the abject performance of his football team against that supported by X) all participants to come into the plenary session. The ground rules were agreed and the mediator had everyone explain their roles and experiences outside of the sad facts that brought them all to the same room. Conversations about people, rather than the problem began. X visibly relaxed on having, for the first time, the chance to talk to the Trust’s doctors about them as people and not about their role in the death of the child.

The mediator then asked for a break for private sessions during which no offers would be made but he would ask some questions which no one was obliged to answer. These would help the mediator better to plan the rest of the day. He asked for 45 minutes in each room and promised to seek permission if more time were needed. The observing trainee mediator was delegated the task of time keeping.

The mediator did not mind whom he spoke to first. X asked to go outside for a break, so the mediator saw the Trust first. It was surprised that X was so reasonable. It indicated it would be, despite the doubts over breach and causation, amenable to making settlement proposals. What did X really want?

After 30 minutes, the mediator met with X. The mediator asked whether they had a picture of their late child. Weeping ensued and the observer wondered what the mediator was doing. Pictures were shown around. Memories and stories told, and more time requested. At no point did the mediator discuss the law, the allegations, or the basis of the claim.

After an hour, the mediator asked where X hoped to be in three weeks, three months, or three years if today (the mediation) were a success. X indicated that they had different ambitions - some needed an apology, others an explanation, others money to found a youth club project in the child’s memory. All wanted to be able to cherish the child’s memory without having a court experience.

The mediator wondered if they had ever explained this to the Trust. X’s family said the Trust had never tried to do anything other than deny liability. It was not about money - it was about respect, and honour, and the mistakes, as X saw it, never happening again. Trusting the process, the mediator asked whether X would let him bring the Trust in and have X explain their ambitions.

After ten minutes private discussion X agreed.

The next joint session lasted nearly two hours. It would be wrong to describe the emotions or the detail exchanged: suffice to say almost everyone in the room including the observer were in shared tears. The lead clinician, who had not been with the Trust at the time but was a model of compassion, ended up hugging the child’s mother at the mother’s request and they had time alone.

As four hours approached, the Trust made proposals that seemed to satisfy X. They were not simply monetary but involved real clinical issues and future ideals. X asked for 48 hours to think about them. The Trust agreed and (to avoid the offers dying with the end of the mediation) the session was technically adjourned.

The mediator learned a day later that the matter had, after X took brief legal advice, settled amicably on terms a court could never determine or decide.

Both sets of participants wrote warm notes to the mediator and the observer trainee noted that at no point had the mediator discussed breach or causation with anyone in any detail. This was a case that would have run for days at trial with, the mediator guessed, considerable uncertainty but ultimately it was about doing the right thing in all the circumstances - and all present honestly and earnestly, and to their credit, made that happen.

Case Study: A Fatal Claim

Trust ADR — Wed, 17 Jun 2026 10:59:07 GMT

Mr C was a patient in his sixties who suffered from a number of pre-existing conditions. He had an extensive medical history including attendances at D’s hospital both as an emergency admission and routinely.
On the relevant day Mrs C called an ambulance as her husband appeared to be having difficulty breathing. Mr C was taken by them to D’s hospital where he was assessed in A & E before (delayed) transfer to a ward for treatment. D’s staff including the duty Registrar failed to identify that Mr C was in fact suffering from acute peritonitis. This was only diagnosed on the ward about eight hours after admission by which time Mr C was in very severe pain. Emergency surgery was undertaken but Mr C died later the same day.
Mrs C brought a Fatal Accidents Act claim for damages on behalf of herself as widow and the children of the marriage claiming PSLA for the period of (unnecessary) suffering, bereavement damages and a dependency claim in relation to minor services which Mr C could still render to her and the children despite his underlying medical issues. The claim had a value on full liability which did not exceed £30,000. The hospital denied all breaches of duty, causation and loss.
The claim was referred for early mediation before issue of proceedings in view of the potentially disproportionate costs which would be likely to be incurred on both sides if the claim were litigated, particularly as Mrs C’s solicitors were acting on a conditional fee agreement and seeking a 100% uplift in the face of the total denial of liability.
The mediation was able to bring Mrs C as the widow into a central place in the case in a way which would have been impossible within litigation. She was extremely realistic about her late husband’s medical problems and had long since accepted that he would pre-decease her by a significant period. Nonetheless she was angry that Mr C had been taken from her prematurely, that she had not been able to nurse him through his latter years and that they had never been able to say goodbye to each other properly. Compensation was not at the forefront of her mind but she wanted something to mark what had happened which she felt was wrong.
The hospital had not yet instructed an expert but were confident that he or she would support their position, particularly in relation to causation on the simple basis that even if the surgery had been carried out very soon after admission, Mr C would still have died on the balance of probabilities. They were however aware that the Registrar in question had now returned to his country of origin and would be unlikely to be a witness at a trial; his notes were not of high quality.
Initial exploration with the parties identified that the hospital authorities were prepared to make an apology to Mrs C for her loss and to make an offer of settlement on an economic basis to see an end to the claim that day. The apology was communicated first and accepted but the hospital’s initial offer of £2,000 was firmly rejected. A series of exchanges brokered by the mediator resulted in agreement to settle the claim for £20,000 and the hospital were also able to settle Mrs C’s solicitors’ costs at a base figure plus a 50% uplift. There was no formal admission of liability.
It is considered that this is a case where mediation worked extremely successfully. It dealt with Mrs C’s anger towards the hospital, it made both sides acknowledge the weaknesses in their respective positions if the matter proceeded and saved a very considerable sum in costs on both sides as formal litigation was avoided entirely. Mrs C left the mediation happy that matters had been resolved so that the family could conclude the grieving process and the hospital avoided all further liabilities and the time and expense which would have been unavoidable if the matter had continued further.

Case Study: A Wider Canvas Than Liability, Causation & Quantum

Trust ADR — Wed, 17 Jun 2026 10:37:43 GMT

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.

ADR in Case Management: The Post-Churchill Landscape for Injury Litigation - Trust Mediation

Trust ADR — Fri, 12 Jun 2026 09:00:00 GMT

Tim Wallis writes for Journal of Personal Injury Law 2026, Issue 1, released in May.

Click here to read the full article.

This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada
Square, Canary Wharf, London, E14 5AQ, in the Journal of Personal Injury Law 2026, Issue 1, and is reproduced by agreement with the publishers. For further details, please see the publishers’ website.

Trust Mediation expands Personal Injury Panel with five senior ADR appointments - Trust Mediation

Trust ADR — Wed, 06 May 2026 09:15:00 GMT

Trust Mediation are delighted to announce the appointment of five senior ADR professionals — Neil Block KC, Brett Dixon, Gerard Martin KC, Nick McMahon and Gareth Thompson to its Personal Injury and Clinical Negligence Panel.

The appointments further strengthen Trust Mediation’s established panel of mediators, supporting claimant and defendant solicitors, insurers and legal expenses insurers in resolving disputes across the full range of personal injury claims. The expansion reflects growing demand for specialist ADR services, including mediation, evaluation and arbitration, within the civil justice framework.

Tim Wallis, Chair of Trust Mediation, said:

“We are delighted to welcome these new senior members to Trust Mediation, increasing our panel from 25 to 30. This expansion is a clear signal of the growing importance of ADR for everyone working within civil justice.

“Claimant lawyers, defendant lawyers and insurers who work with us will recognise that these lawyer‑mediators, each bringing a distinct blend of skills and expertise, are well placed to join our established team of specialists.

“Personal injury practitioners and insurers are highly experienced in resolving high-, medium- and low‑value claims through traditional settlement routes. Increasingly, however, that experience is being enhanced by a strong working knowledge of ADR practice and procedure, to the benefit of both paying and receiving parties. Our strengthened panel is well placed to support that process and to help achieve earlier and more efficient resolution.”

Introducing the new panel members

Neil Block KC

Neil, a former Personal Injury Silk of the Year, is regularly appointed as mediator across a broad range of disputes. Neil Block KC says “Having spent years mediating and providing evaluation in complex and high value personal injury, clinical negligence, sport and insurance cases I am delighted to bring this experience and skillset to add to the wide-ranging service provided to litigants by Trust Mediation. ADR is embedded in our legal processes and Trust Mediation is a trail-blazer in providing a specialist service. I am very much looking forward to working with them.”

Brett Dixon

Brett is the Vice President of the Law Society and brings a unique, 360-degree perspective of the civil justice system as both a lawyer and rule maker. He offers a sophisticated blend of procedural expertise and commercial awareness, coupled with an empathetic, people-focused approach dedicated to helping parties navigate complex disputes and reach practical resolutions.

Brett says “Efficiency in the civil justice system is about more than just speed; it is about delivering practical resolutions that allow all parties to move forward. Having spent much of my career building the digital architecture for modern justice systems, I am acutely aware that technology and process can be part of reaching the end goal of a fair and timely outcome. Mediation offers a vital, flexible space to achieve this, and I am looking forward to helping Trust Mediation’s clients find pragmatic and timely solutions.”

Gerard Martin KC

Gerard, who has been described as “an outstanding advocate and a brilliant negotiator”, is nationally recognised for his expertise in high value personal injury and clinical negligence matters. Gerard specialises in brain injury and spinal injury cases for adults and children, and he also has extensive experience in clinical negligence work.

Gerard says “Alternative dispute resolution is now firmly embedded within the modern civil justice system, and its effective use is increasingly central to achieving timely and proportionate outcomes. I am pleased to join Trust Mediation’s Personal Injury Panel and look forward to helping parties resolve disputes earlier, more efficiently and with greater certainty.”

Nick McMahon

Nick McMahon is an accomplished Civil and Commercial Mediator based in the UK, with a distinguished career in litigation and dispute resolution. As a Solicitor, Nick brings decades of expertise, specialising in insurance, product liability, personal injury, medical malpractice, and professional indemnity cases

Nick says, “From the outset of every mediation, I challenge parties to work collaboratively with me to get to the heart of the dispute, not fixate on rigid positions, and to move pragmatically towards a solution commercially viable for all.”

Gareth Thompson

Gareth Thompson is an internationally recognised mediator, neutral evaluator and arbitrator of civil and commercial disputes. Gareth was a Partner at a leading City of London law firm dealing with complex disputes involving personal injury claims and disputes under commercial contracts before focusing his practice on being a mediator, evaluator and arbitrator. Gareth is a Civil Mediation Council Registered Mediator and Member of the Society of Mediators.

Gareth says “It is a privilege to be appointed to Trust Mediation’s prestigious panel of mediators. Mediation and Early Neutral Evaluation play increasingly important roles in helping parties resolve disputes efficiently and pragmatically and to delivering outcomes that make economic sense for all involved. I look forward to working with parties to achieve such outcomes as part of the Trust Mediation team.”

Trust Mediation continues to work with legal professionals and insurers across England and Wales to deliver timely, cost-effective dispute resolution and remain at the forefront of ADR developments.