Mediation in Personal Injury and Clinical Negligence: The pros and cons

Mediation is in theory supposed to have moved from the periphery of personal injury and clinical negligence litigation to something approaching the mainstream. In some ways we have seen this and of course court directions now require this. For solicitors advising clients in an increasingly cost-sensitive and court-directed environment, the question is no longer whether mediation should be considered, but rather when it genuinely adds value – and when it does not.

From the Bar’s perspective, mediation can be an extremely effective tool in the right case. It can also, if misused or mistimed, be an expensive distraction. What follows is a candid assessment, only mine of course, of the positives and negatives of mediation, aimed at those making the strategic call on whether to recommend it to clients.

The positives

1. Control over outcome

Perhaps mediation’s greatest strength is that it returns control to the parties.

In both PI and clinical negligence claims, litigation outcomes are binary and externally imposed. Mediation allows for creative and nuanced settlements that a court cannot order –structured payments, apologies, explanations, or agreements about future care or treatment pathways.

For claimant solicitors, this can be particularly powerful where a client wants recognition or closure rather than vindication at trial. For defendants, it allows resolution without findings of fault that can be catastrophic for the professionals involved.

2. Managing risk in uncertain cases

Clinical negligence claims are notoriously difficult to predict. Even strong cases can fail on breach or causation; weak cases can succeed if expert evidence aligns unexpectedly.

Mediation allows solicitors to help clients price litigation risk realistically, rather than gamble on a trial outcome that may turn on judicial preference between experts. From experience, many mediations settle not because one side “wins”, but because both sides finally confront the real uncertainties of their positions. I learned in my training as a Mediator to encourage parties to place a mirror in front of their own cases in a way that is much harder to do in the harsh light of the court room.

3. Cost and proportionality benefits

While mediation is not cost-free, it is often significantly cheaper than trial, particularly in cases where:

• quantum evidence is extensive,
• multiple experts are involved, or
• trial windows are distant with a long procedural road intervening.

In a fixed or semi-fixed costs landscape, mediation can be an effective way of protecting margins while still delivering good client outcomes. It also reduces exposure to adverse costs risk – an increasingly live concern in higher-value PI and clinical negligence claims.

4. Client experience and emotional resolution

This is particularly relevant in my opinion in clinical negligence work. Many claimants value the opportunity to be heard in a non-adversarial environment. Mediation can provide space for explanation, apology (without admission), enhanced understanding of what happened and acknowledgement – elements that are simply not available at trial.

Solicitors who prepare clients well often find that mediation improves client satisfaction, even where settlement is not ultimately reached.

The negatives (and they matter)

1. Mediation is not always cheaper

A poorly timed mediation can be a false economy. If liability evidence is incomplete, expert positions are still fluid, or parties are entrenched, mediation can simply add another layer of cost. A failed mediation may harden positions rather than soften them. From counsel’s perspective, the most frustrating mediations are those where the case simply is not ready – and everyone knows it by lunchtime. These are rare but it does happen.

Is a JSM more cost effective? I think the answer here is that it can generally be cheaper or comparable in cost but not in every case. In my view, multi-party cases and entrenched positions by the lawyers as much as the client may be alleviated in a mediation, if your Mediator is good!

2. Power imbalances can be magnified

Mediation is not inherently a level playing field. In clinical negligence cases, claimants may feel intimidated by NHS Resolution or insurer-backed defendants. In all injury claims, injured claimants can struggle with the psychological pressure of compromise.

Without careful preparation and appropriate advocacy, mediation can risk pressuring vulnerable clients into settlements they later regret, perhaps a feeling that the mediator wants them to settle. This is not a criticism of mediation itself, but a reminder that it requires active management by solicitors and counsel alike.

3. No precedent, no vindication

For some clients, especially those motivated by principle, mediation can feel unsatisfactory.

There is no judgment, no public accountability, and no formal finding of fault. In cases raising novel legal issues or where a party seeks authoritative determination, mediation may be the wrong forum altogether. The whole legal team needs to be alive to whether a client’s objectives are genuinely compatible with compromise in this forum.

4. Strategic misuse by opponents

There remains a risk – particularly in defendant-led mediations – that the process is used tactically. This is rare in my experience as mediation depends on a goodwill of compromise. However, it does happen. Such approach might seek to:

• to test the claimant’s bottom line,
• to delay proceedings, or
• to demonstrate “engagement” for costs purposes without genuine intent to settle.

An experienced legal team can usually spot this early, but solicitors should be cautious about recommending mediation where there is little evidence of reciprocal engagement.

When mediation works best

From practice, mediation tends to be most effective where:

• liability is contested but credible on both sides;
• expert evidence is substantially complete;
• quantum parameters are broadly understood;
• clients are emotionally and practically prepared; and
• there is genuine authority and willingness with intention to settle.

In such cases, mediation is not a compromise of principle – it is often the most commercially and humanly sensible outcome.

The solicitor–counsel partnership

Mediation works best when solicitors and barristers approach it as a joint exercise in strategic problem-solving, not a last resort.

That means:

• early and honest advice on risks;
• careful timing;
• proper client preparation; and
• selecting mediators with genuine subject-matter expertise in PI or clinical negligence and / or with genuine proven skills in managing these facilitative or evaluative processes (dependent on the type of mediation) to a resolution.

When done properly, mediation enhances – rather than diminishes – the quality of legal representation.

Final thought

Mediation is neither a panacea nor a procedural hoop. It is a tool – powerful, but blunt if mishandled.

For those advising clients in personal injury and clinical negligence claims, the real skill lies in knowing when mediation will unlock resolution, and when it will merely defer the inevitable. In that assessment, experienced counsel can and should play a central role, but I suppose I would say that!

Article by Emma Zeb KC