James Rowley KC - Continuing to Make the Most of Hybrid Mediation in Large Loss PI Claims
2nd March 2026
Shortly after beginning mediation practice in 2024, James Rowley KC described his approach in Making the Most of Hybrid Mediation in Large Loss PI Claims (delivered at the Byrom Street Chambers’ Symposia 2024). The Original Paper can be found on the Byrom Street web site and the Civil Mediation Council blog and the contents will not be repeated:
https://civilmediation.org/mediation-personal-injury-claims/. Nearing the end of his second year, he reflects on the approach in the light of early experience.
Preparing for the mediation
About half the mediations have involved a failed prior negotiation. Others have involved causation/prognosis disputes over psychiatrically-mediated conditions, leading to the first attempt at negotiation with an expert mediator. One involved a liability dispute between insurers, playing alongside contributory negligence.
When sending out the Mediation Agreement for signature, the mediator has disclosed his previous dealings with solicitors and insurers. If involving an expert mediator still in practice, it is inevitable that there will have been some previous dealings at a distance. No one so far has backed out.
After the mediation agreement has been signed, the Original Paper has been provided so that the participants can see what to expect and begin to prepare.
The mediator has then opened up an explicitly confidential and individual email communication with the solicitor for each participant and there has usually been encouraging engagement. If there is a back story to the mediation, it has been provided and, while being shared only by the solicitor with the mediator, there is already a sense that, by so doing and getting it off their chests, participants are advancing on the path towards resolution.
Some, but not many, have taken up the offer of a confidential discussion with the mediator on Teams or the telephone before the day of the mediation itself. It has been useful when it has happened. Communication prior to the day has usually been by email with solicitors, counsel joining only on the eve of the day itself, if at all.
Not many participants have been able to resist the temptation to repeat their previously stated positions, whether maintaining high/low schedules or providing a strongly worded opening statement. While slightly disappointing on one level, this has been helpful to see, as it suggested earlier and stronger steering from the mediator in the absence of a confidential side document containing reassurance - see below.
Where joint statements from experts followed a failed JSM, one open revised counter schedule accurately reflected the changing mood to good effect.
Many participants have provided confidential appraisals of the dispute - for the eyes of the mediator only - before mediation day; they have all been helpful and some were very realistic. Once, an annotated Excel spreadsheet schedule was received on the evening before the mediation, with confidential suggestions for compromise in numerous areas.
No one has followed the suggestion in the original paper for mediation bundles but it has not mattered. Once the pdf bundle was locked, so it could not be annotated, and that delayed preparation a while.
Mediation Day
All mediations have started slightly early, with the mediator introducing himself in closed rooms. In none has there been an open, substantive session at any point. Sometimes but not always, participants have met in friendly fashion when agreement has been reached.
Where strong opening positions have been maintained without reassurance within a confidential side document, earlier steering than was originally envisaged from the mediator - occasionally quite a shove - has been adopted. While at the risk of alienating a participant early on, it has seemed better to take that chance than to allow a wider trench than necessary to be dug into the negotiation. When a real steer has been given, participants have generally altered course.
In one mediation, where there was a reassuring side document standing behind a high open schedule, an invitation towards taking half an hour out in order to draft an open summary position, at more realistic levels of expectation, was taken up to good effect.
No mediation has yet required a detailed/full reveal of likely figures on every head of damage at trial. Rather, consistent steers on the key disputes at what appear to be the right times, which may not be quite the same in different rooms, have been sufficient to unlock an overall agreement.
Unsurprisingly given that large loss PI claims are usually settled in JSM and we are all practised in them, the feel has been more of “assisted JSM” than more conventional mediation. So far, participants have reached overall agreement by late afternoon on mediation day itself. Often there has been time remaining in order to draft a Tomlin Order, to see things off completely where the participants have capacity.