Measuring success in mediation

Protocol correspondence has failed to narrow the issues in a professional negligence claim. Quantum has increased just before mediation from £1.2m to around £2.5m, based on an unsigned and as yet unconvincing accountant’s report. Defendants can see some slight risk on breach of duty but consider there is a complete defence on causation, with no need to engage on quantum.

Claimant’s expectations are high, promoted by an over optimistic solicitor. Counsel, who has not been much involved to date, attends and clearly sees the difficulties in the case. Expectations are somewhat adjusted.

Most of the day is spent clarifying the Claimant’s case on causation with Defendants identifying why it doesn’t work. Opening offers are traded, £450k on one side, nuisance value of £25k on the other. Both sides accept there is no potential for settlement on the day. It is agreed that Claimant’s Counsel will prepare draft Particulars of Claim so that the Defendants can more clearly see the case they have to answer, prior to further discussions/negotiations.

Success or failure? Certainly there was no Settlement Agreement at the end of the day, but a way forward had been plotted and the parties had agreed to keep talks alive and to extend the stay. Expectations had been fundamentally changed as the Claimant came to better understand the Defendant’s position that, even if there was negligence, this was not necessarily the cause of any loss. This is not a case that is likely any more to trouble the Court.