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Claim Types

Types of Claims Where Mediation is Indicated:

Where Early Settlement is Important

Where this is an important issue for one or both parties, mediation can often produce a settlement. You do not need a trial bundle to settle a claim; nor do you need one to mediate. All that you need to settle by mediation is sufficient information to make a business decision about the case. JSMs, by contrast, usually take place late in the proceedings.

Multi-Party Actions

Mediation works particularly well with these claims. Often, the mediator will effectively run two mediations. One between the claimant and the defendants as a whole, concerning liability and quantum, and another amongst the defendants to determine levels of contribution.

   See Supershield Ltd v Siemens Building Technologies FE Ltd. [2010] EWCA Civ 7

Friction Between the Parties or the Legal Teams

When there are “people issues” getting in the way. This might refer to the parties, their lawyers or both – they are all operating in an adversarial system and there are various reasons why some cases get fraught. The mediator can act as a conduit to re-open the negotiations. The presence of the mediator re-focuses on the issues between the parties rather than the history. It is useful to consider mediation whenever a case should have settled but, for some reason, has not.

Emotional Issues

A claim involving a fatality or where the claimant is a child usually involves emotional issues. As one claimant personal injury lawyer remarked after a mediation:

“Distressing issues for the claimant had made negotiations difficult. However the mediation process overcame these, allowing for settlement to be reached. My practice is in Fatal Injuries and I will be recommending mediation to other clients.”

The Defendants Want To Meet The Claimant

To most defendants, the claimant is someone they know about through a file of papers and reports. Meeting the claimant can make all the difference to a defendant’s assessment. Such a meeting can cover issues ranging from eliminating a suspicion of fraud to understanding just how badly a claimant has been injured.

A JSM has Failed (or is likely to fail)

Mediations often succeed where a JSM has not resulted in a settlement. If it appears that a JSM will fail it may be more economical to move directly to a mediation.

The claimant appears to have unrealistic expectations of settlement

Claimants often remain unconvinced by arguments put to them by a defendant lawyer but a mediator, as a trusted neutral, can play an important role in reality testing and challenging unrealistic expectations. The mediator can also assist a claimant’s lawyer, who is having difficulty managing the claimant’s expectations, or a defendant in coming to realise that, although the claimant’s figures are high, they may well be achieved at trial.

The court has ordered a stay for mediation or otherwise encouraged the parties to mediate

A body of case law makes it clear that costs sanctions will be imposed where a party unreasonably refuses to mediate. The fact that negotiations have already taken place and a party believes mediation is not likely to result in a settlement will not necessarily be accepted as a reasonable refusal to mediate. (See, for example, Garritt-Critchley and Others v Ronnan and Solarpower PV Limited [2014] EWHC 1774 and Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd (No 2) [2014] EWHC 3148 (TCC).)

When the likely costs of trial are disproportionate to the amount claimed

Wherever legal costs are likely to be disproportionate the court will consider what steps have been taken and should be planned regarding settlement and mediation.

Whenever there are difficult issues in addition to the claim itself

For example, where there is a dispute about jurisdiction, there are cultural or linguistic issues, where it is particularly important for one of the parties to settle the claims swiftly or with the benefit of an agreement to settle on confidential terms.

The presence of a mediator will:

  • change the dynamic of the negotiation
  • often change adversarial behaviour
  • involve the claimant and the defendant/insurer in the difficulties of the case and often mean that you will learn about significant matters that otherwise you would not have learned:
    • The other party will tell the mediator things they will not tell the other party.
    • The mediator will never come anywhere near knowing your case as well as you do - but he/she may well, from discussions with the other side, have a better understanding of their case than you do, or at least some different insights.

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