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Making the Most of Hybrid Mediation in Large Loss Personal Injury Claims

Making the Most of Hybrid Mediation in Large Loss Personal Injury Claims

In his in-depth article James Rowley KC discusses a hybrid approach to mediation in large loss personal injury claims, blending facilitative and evaluative techniques. This method allows mediators to help parties reach settlements by providing neutral guidance and expert opinions. Rowley highlights the importance of selecting the right mediator, preparing thoroughly, and engaging strategically to achieve effective and timely resolutions in complex personal injury cases.

I find I am much prouder of the victory I obtain
over myself, when, in the very ardour of dispute,
I make myself submit to my adversary’s force of
reason, than I am pleased with the victory I
obtain over him through his weakness.

Michel de Montaigne, The Complete Essays

Hybrid mediation – a small sub set of personal injury (PI) cases

A great deal has been written about the theory and practice of mediation. Its proponents usually hold strong views about how it should and should not be done. This paper will not enter any such territory. It will only discuss what is, currently at least, a small subset of negotiations in PI cases – those where the participants want a chosen mediator, with subject matter expertise, not only to encourage them to sense-check their positions for themselves but to assist them with confidential, specialist, non-binding input.

Negotiation of PI litigation in England & Wales

While there are many mediated disputes conducted without lawyers and where the real issues have to be teased out before the solution can even be sought, serious PI litigation in our jurisdiction is highly-developed; the parties to litigation are pretty well universally represented by specialist solicitors and counsel; the claim will have been intimated and nearly always stated and supported in detail on liability and quantum.

The overwhelming motivation on all sides is to find the right financial settlement without the uncertainties and financial risk of going to trial (or without the delay and cost of litigation at all in the case of early settlement). No other remedy has anything substantial to offer: a defendant driver, for instance, will almost never be present to give an apology and one from the representative of a corporate defendant rarely resonates. We should not kid ourselves that the other reasons usually given for mediating have much to offer. Negotiation in large loss PI claims is about finding the right number and little else.

What is more, since the working party was constituted on the Northern Circuit in 2002 to set out common expectations in Joint Settlement Meetings [JSM], the finding of the right number has been done countless times by the lawyers and parties without the assistance of a mediator. In these myriad cases, the lawyers have managed, in the mediation jargon, to self-sense-check. A few cases go to trial with all the stress, delay, uncertainty and expense associated with that. And one or more parties to the litigation (often both/all) find they have got it wrong; the unhappy eventuality of a trial usually provides sufficient impetus for all sides to hold themselves in check in negotiation and reach compromise.

Mediation in theory and in practice

Mediators usually begin their training in the purest of facilitative working practices. The aim is to maintain complete neutrality – giving no view or steer on anything – even to the extent of asking only tame, non-leading questions. Members of the Bar find this the hardest part of mediator training and that it is almost impossible to sustain a sequence of useful non-leading questions, without imparting any spin at all towards a potential answer. And any mediator with expertise in the subject matter of the dispute will have a view: it is impossible not to hold one, only to try to hide it with varying degrees of success.

Whenever a mediator makes any intervention, however bland, the context provides material for an inference. When Wilson says, “Do you think that’s wise, Sir?” we know he is pointing out to Mainwaring that he is about to be a blithering idiot. Similarly, when the facilitative mediator finds an excuse to leave and suggests a participant thinks about how the offer being contemplated might go down in the other room, it is a polite way of saying the same thing.

And so, outside the training environment, there is a recognition that theoretical, complete neutrality is not only practically impossible but probably undesirable as long as the mediator gives genuine, consistent, well-researched and expert/evaluative steers to the participants. They remain free to take the hint or leave it.

Outline of hybrid mediation in PI claims

In recent years, a small number of senior PI Silks have pioneered a hybrid model of mediation that has gained a following for deployment when a JSM on its own might not do the trick. It is this model that Byrom Street mediators have gratefully adopted unless the participants specifically agree on another. It grafts facilitative and evaluative branches of mediation on to the root stock of a conventional JSM. It leaves the mediator free to adapt to the dynamic of the negotiation, applying techniques from both facilitative and evaluative spheres.

The dispute will usually be well demarcated by statements of case, schedules and exchange of evidence. This allows the well-prepared mediator to work from a position of relatively deep understanding from the start. A preliminary open session, which often just increases the tensions and takes time out of the day, can usually be avoided unless everybody really wants one. The mediator goes to work largely in closed rooms, with individual participants. There may be no open session until agreement is reached and, even then, if time is running out the participants may never meet.

The mediator will often begin by asking participants about their approach to the key elements in the case – the ones which, if positions can be narrowed, are most likely to enable settlement. In making the inquiries, the mediator will initially attempt to engage everyone in the business in hand and improve his/her own understanding. Much will depend on the identities and styles of the legal representatives, as the mediator, with long experience of negotiation, forms a rolling assessment of the best route forward. The topics for discussion will be designed to get everyone thinking – discussing the key moving parts of the day’s business in their own rooms – and to prompt someone to make an opening offer (fingers crossed, one in the realistic bracket). A mediator may give a gentle hint on some issues from early on but, if so, it will almost certainly be hedged about in provisional terms.

None of the content of confidential discussions between a participant and a mediator will be revealed to another without express authorisation.

Apart from the questions and answers early on, if the participants are being relatively realistic in their approaches, the dynamic of the mediation may not feel so very different from an ordinary JSM to start with. If substantial progress continues – so an agreement within the timeframe available appears realistic – the mediator may well allow the largely facilitative phase of the mediation to continue. If progress slows with a significant gap remaining, the mediator is likely to become more evaluative in approach, volunteering greater appraisal and risking more in the way of suggestion.

If unrealistic positions emerge from the opening discussions, the mediator has the option of moving into a more evaluative mode almost straightaway. Often it will be better for the mediator to let things largely take their course for a couple of rounds of negotiation before becoming more forceful: the comparative movements between first and second round positions usually reveal much more of the true lie of the land than do the opening offers alone.

Whereas a facilitative mediator will aim to give the participants roughly equal time, the hybrid mediator with real subject matter expertise is far more likely to spend longer and work harder in the room that appears further away from the mark.

Participants remain entirely free to make their own decisions, which the mediator will communicate to the others in exactly the form authorised; nothing more, nothing less. If a message to the other side is thought desirable, the mediator must be specifically authorised to communicate it or else the confidential nature of the process means that nothing said can be revealed. In training, mediators are taught to make participants commit all communications to writing; in practice, the trusted expert mediator will make a boiled down note and probably repeat back what (s)he is authorised to say. A complicated offer, however, is still better written down by the participant and emailed so there can be no mistake.

If the mediation requires a final push, the hybrid mediator might well reveal the figures (s)he is contemplating as those representing a par result should the case go to trial. As a matter of expression of the numbers/percentages, the reveal is likely to be couched in hypothetical terms as being what a court might well do; but it cannot be otherwise than correspond with the mediator’s view of the likely outcome.

The reveal may be done in different ways but, most likely, in closed rather than open session and not usually with all participants. If one side is close to the mark, the mediator will be working on the participants with greater need of the input. The mediator might provide figures for the main heads of damage or the main contests only, or for each head of damage [a detailed reveal]. Aimed at carrying quietly persuasive weight, the expert mediator is likely to be able to say why the suggested outcomes at trial lie where they do. The reveal in a hybrid mediation is not a full neutral evaluation, still less a binding arbitration: participants remain free to do as they please – to follow it / ignore it / carry on negotiating / go home. Nevertheless, experience suggests that, in the right hands, this form of mediation helps the participants come to terms with the outcomes they previously perceived as unpalatable and aids settlement. With independent and courteous nudging (with gradually increasing levels of intensity), warring parties may be ready, by the end, to lay down their weapons and take a decision that had not been contemplated a few hours earlier. An independent, respected, briefly reasoned and alternative view might be just what is required to bring the sides together.

If a detailed reveal is provided in open session or in separate closed sessions with all participants [a full reveal], there is little more the mediator can do other than hang around to see what may come of it. There may be continued negotiations – as the participants try to persuade each other that the merits do not lie entirely with the reveal – but the mediator can hardly get involved in those. And so, unless the allotted time is running out, or the participants are perceived to be very close, a wise mediator will usually delay a full reveal for fear of playing him/herself out of the rest of the day.

Preparing for the mediation

We stray here often into ordinary advocacy and adversarial techniques that are not peculiar to mediation. There are, however, a few ideas that have particular resonance.

The choice of mediator

It is sometimes said that you should agree to the choice of mediator proposed by the other side. It enables the quip, “You chose the mediator. Why don’t you listen to what (s)he says?” More seriously, participants are likely to listen to a mediator they respect and like. It may be good tactics to agree the mediator your opposition wants, within reason, if you believe they are the ones who need to do the hard listening!

Having determined that a hybrid mediation rather than JSM is a good idea, it is only realistic to assume a major reveal will be necessary. There is a balance then to be struck in choosing a mediator who is [1] likely to be more sympathetic to your own position in the reveal but who is also [2] able to carry all sides through to that point while continuing to enjoy their respect, so that they are still listening. In the final analysis, mediations are not often held unless the parties to litigation actually want to settle if they can; choosing a mediator who can get to a settlement is preferable to chancing it for one who might be a little more sympathetic but who risks not being able to carry the dispute over the line. Someone with a reputation for even-handedness and level temperament, on top of proven expertise appropriate to the dispute, will be the order of the day. The identities and egos of all involved will also be important: senior silks are less likely to listen to junior silk mediators than their equals or, if such can found, someone even more senior/respected; if there is a lot of maths involved, someone good with numbers; and so on.

Conduct a realistic re-appraisal in preparation

Mediations in large loss PI cases are often held where previous attempts at settlement have failed but there is a willingness to try again. Let that enthusiasm for another go, then, encourage all participants in a realistic re-appraisal in preparation for the big day.

It can only strengthen your position to rein in excesses in schedules and correct meanness in counter schedules. Perhaps the evidence has changed with joint meetings intervening or a further round of disclosure of records? Sometimes everyone knows that a certain position or idea got the previous JSM off on the wrong foot or caused it to take a turn off the right path. Resolve not to let it happen again and consider improving the paperwork on which the mediation will be based in good time.

Providing the mediator with the confidential background

While you could appoint the mediator and trust him/her to guide everyone and get to a reveal unaided, the conduct of the participants in preparation for and during the mediation will inevitably have its impact.

The mediator will need to understand the history of a prior failed negotiation in order to do better this time. There might be production of an agreed record of the earlier offers and counter offers. Even this, however, will not paint a full picture. Participants have a unique perception of why a case failed to settle. If you want to make the most of having a mediator, tell him/her what happened to allow preparation in good time for the day rather than do it 3 hours into the mediation, when avoidable mistakes are piling up. If a mediator asks for a confidential heads up from each camp – not to be shared, obviously – to enable effective preparation and to hit the ground running, it can only help advance your position to take it seriously. An element of introspection, if appropriate, rather than blaming the other side entirely for everything can make for a powerful starting point. If you took a conscious decision in re-appraisal not to amend the paperwork for tactical reasons, it might be better to share the weakness with the mediator at the outset rather than leave the point festering a second time.

If a case is being taken straight to mediation rather than down the usual JSM route first, tell the mediator confidentially why that is. If you and your opponent have a history of unpleasant confrontation, say so and the mediator can avoid inviting you into joint session. What you say will go no further.

Mediation bundles

There is nothing peculiar about mediation bundles: brevity and focus on what remains in dispute is always a good idea. No one wants a single bundle with thousands of pages of everything in it. It is impossible to navigate. Everyone wants to be able to have documents from each side open, in different windows at the same time, for comparison and cross reference.

In what follows in this section, I indicate my own preferences. They are to have the key documents, in similar order, in a dedicated and bookmarked bundle for each participant, and then a further bundle for the rest. If documents have been updated or amended, unless there are tactical points arising from the changes only the most recent version is required.

A bundle for each participant:

•  Particulars of Claim / Defence / key pleadings
•  Schedule / Counter Schedule
•  Relevant witness statements
•  Expert evidence: liability evidence (if still live); medical evidence (key disciplines first); other specialisms in the order you would expect to see the heads of damage in a Schedule

Common bundle:

•  Key orders in the litigation that are still relevant
•  Joint statements of experts (same order)
•  Jointly instructed expert reports
•  Relevant disclosure documents

In a document heavy case with years of support worker, therapy and case management records, earlier records carry far less significance than the later ones if the issue is principally over future loss. In an ideal world, I want to have the most recent 6 months of everything to speed read and highlights only of the rest – perhaps the initial and periodic progress reports, and any telling days of support worker and case management records. Much will depend on the specific case but you get the idea.

If you provide the lot, I will read only recent records fully and sample the rest briefly, doing my best to find highlights, unless a reading list is provided or participants agree with me otherwise. Reading literally everything takes a very long time and will rarely be necessary, or worth it, for a mediator.

Getting the most out of the mediation
Opening statements – only if you really need to

Unless the mediation is being attempted prior to the commencement of litigation, the dispute should already be well set out in writing. You have chosen a specialist mediator and there is no need to do it all again.

The exception is if you want to simplify or finesse the dispute for the purposes of the mediation only i.e. produce a document for all to see but which will remain confidential and without prejudice should the mediation fail. This is always a helpful style of document – in advance if possible.

The mediator will also be happy to receive any written summary or statement which is to remain confidential between the participant concerned and the mediator. You might have re-worked or refined figures you are willing to share with the mediator in writing. It will save time in the closed meetings and establish rapport.

The time for grandstanding is over and that may be the reason you are in a mediation rather than JSM. Do not make it more difficult to move later by repeating earlier positions. Do not generally expect a hybrid mediation to begin in open session; rather, the mediator to want to come to you individually as soon as you are ready – often before the agreed formal start time – and get going in closed session.

Resist the temptation to grandstand the mediator

Just as a court can always see grandstanding for what it is, so can the mediator with real subject matter expertise. There is a temptation towards vicarious grandstanding in a closed room at the beginning when answering the mediator’s questions but it is not a great idea. A mediator will expect and allow for an element of tactical positioning (as in JSM), with participants setting out their stalls rather too optimistically at the beginning. There will be no expectation – though it could be done to good effect – that participants will tell the mediator exactly what they are really after at the outset. Overdoing it, however, while not confiding in the mediator cannot help. It wastes time and mediators are less likely to make significant nudges in the direction of your position in other rooms while you are mucking around.

Engage with the mediator

Trust in the confidential nature of the mediation and be ready to explain, with the sort of brief detail you would expect in a mediator’s reveal later, the real basis of your thinking at any given point. If your real position is “x” but you want to offer “y”, you can tell the mediator that without any fear of it being let slip to others. Don’t keep the mediator in the dark. While mediators have a reputation at stake for conducting mediations that reach successful conclusions, they have no interest in how the result compares with theoretical perfection. Participants can settle on any terms they like and mediators will only have silent admiration for a side getting the better of another.

Try not to take too long

It is not uncommon in JSM for the exchange of schedules and evidence to have taken place relatively recently and for the parties not yet to have processed everything fully. Lawyers can still be giving substantive advice in JSM on merits and size of award (and clients trying to understand it) when all should really be past that point. It can then take a long time. In this situation, where participants have only an evolving and incomplete mastery of their own positions, a hybrid-style mediation cannot easily take place.

In an ideal world, decisions during negotiation should not be around fixing the target, only formation of the best shape of the route to get there. It should be about planning the strategic positioning of offers and responses, pressing a few buttons at each point to display a mastery of the dispute. It may go well or poorly, of course, and require some limited repositioning of the target but major reappraisal of the target itself should be the exception.

Hybrid-style mediations in large loss PI cases are sufficiently rare (and rarefied) events to expect the speed of discourse to be approaching the ideal. There has often been a dress rehearsal in a failed JSM. If not, legal teams need to prepare themselves and their clients far more thoroughly than many might think they can get away with for a JSM.

Most mediations are arranged with a view to them finishing within the day. Having helped the mediator to prepare well, it is also important to start on time and to get through the early closed sessions and rounds of offers smoothly. This is particularly so where there are multiple participants. Representatives should have the authority and ability to explain their positions accurately on liability, and the derivation of the figures they are using, without constantly breaking off to take instructions. Be ready to deal with the obvious questions as to your position in the key areas, which may change as the day progresses.

The end game

What marks out the hybrid-style mediation, when working well, is the willingness of the participants to interact with a new, independent and experienced voice. Be prepared to listen (and keep listening) to the mediator. Align yourself strategically before and in the early phases of the mediation so you are not painted into a corner; if you find yourself in one, ease yourself out of it if you possibly can.

It comes with the territory that there is a difficult dispute and one, if not more, of the participants will have to challenge their pre-conceptions and make decisions in directions previously considered unpalatable. Allow the mediator to go to work on the sticking points and get yourself into position so that when the reveal comes it is you who is within touching distance. If you find yourself yet some distance off, ask again if further movement is not preferable to the additional expense, delay and uncertainty of a trial. It remains up to you.

Concluding the mediation

A participant is free to leave a mediation at any time. It is good form, however, to notify the mediator of your intention, to explain why and, if it is suggested, to hang on a bit longer. A break through may yet be possible and you have paid for the day. If the mediation ends without success, everything that has transpired remains confidential and without prejudice.

Occasionally, time runs out on the fixed day but the participants want to continue talking, or at any rate exchanging offers or allowing further time for reflection on an offer already made. Most mediators will agree to allowing the cloak of the mediation to wrap round the aftermath for a bit longer and to playing a remote role in that. Any continuing phase to the mediation will, almost certainly, be strictly time limited.

A settlement at the mediation will not be legally binding until it has been reduced to writing and signed by or on behalf of all participants. This will usually be a memorandum, drafted by one of the legal representatives of the participants, of the essential terms rather than a fully fledged consent order to bring the litigation to an end. If attending the mediation remotely, be ready with a means of signing an emailed pdf and sending it on.

The mediator will delete/destroy all documents, including emails and his/her own notes, at the conclusion of the mediation. Nothing will remain beyond a diary entry and a fee note.


This paper was written for the Byrom Street Chambers’ Symposia 2024 and first delivered on 17 April 2024 at Everyman Manchester.

James Rowley KC maintains a balanced practice representing both claimants and defendants in catastrophic injury cases. He deals with claims of the utmost severity, including amputations along with brain and spinal injuries.

James offers a blended form of mediation with substantial expert/evaluative elements. He is a CMC Associate Mediator, trained at the London School of Mediation, and was Chair of the Personal Injuries Bar Association between 2010 and 2012.

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