'OK, it's a deal'

It’s a performance on a par with Sean Penn or Mickey Rourke – sort of. Throwing on a tatty green jumper over his blue shirt, Jonathan Dingle, barrister and mediator, becomes Timothy Murphy, a belligerent transient worker who is suing a transport company after he was hit by a bus.

Dingle is flexing his acting muscles as part of a mock mediation, organised for Insurance Times by not-for-profit group Trust Mediation. His character, Murphy, is going head to head with an equally fictional Bristol bus company, called Dart. Murphy is represented by his solicitor, Horace. Dart is represented by its in-house solicitor, Toby, who has brought a representative from Dart’s insurer, Aishling.

At first, a deadlock seems certain. But eventually, after careful feedback, the mediator – an impartial third party who attempts to help resolve disputes – enables both sides to reach an agreement.

Sir Henry Brooke, former vice-president of the Court of Appeal (civil division) and chairman of Trust Mediation, oversees the mock mediation. He founded the organisation a year ago and it has since taken on 33 cases. Thirty-one have been settled through mediation.

“In the past 10 years when mediation was developing in this country I saw the great advantages of it,” he says.

“The big payoff of the system is the cases which don’t settle at the appropriate stage and run to the door of a court settlement, which is a disaster all around.”

Becoming a mediator is relatively simple; the minimum requirement is an accredited course that includes 24 hours’ training, two hours of supervised mediations and six hours of continuing professional development.

The ease of qualification might explain why some insurers and lawyers remain sceptical. But Brooke says if it’s done right, mediation can save time, money and frustration for claimants, defendants and insurers. Trust Mediation, for example, charges a fixed fee of £1,150 for a four-hour session – a tiny sum compared with the costs of a case that goes all the way to a judge.

“The benefits of mediation are realised in those cases in which the parties are unable to settle on their own,” says Brooke.

Some insurers and lawyers are sceptical that mediation is useful in personal injury claims, like the Murphy mock case, because so many of them are settled out of court. But Brooke says most are settled in the final run-up to trial, whereas mediation can bring settlement months earlier.

Others still see mediation as “weak” – an attitude that was criticised by Lord Justice Ward during Egan vs Motor Services (Bath) [2007].

“It is not a sign of weakness to suggest it,” said the judge in the Court of Appeal. “It is the hallmark of common sense. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.”

In the mock mediation of Murphy vs Dart, Murphy, who is well known at the local magistrates’ court, said he was crossing the street at 1am when, after looking both ways, he was “suddenly struck” by a Dart bus. His wrist was broken. He admitted he had been drinking, but denied being drunk.

He originally demanded £11,000, for his broken wrist – £3,600 potential lost wages, £4,900 medical costs, and £300 care, plus interest and legal costs. But at the start of the mediation, Murphy announced that he wanted total damages of £100,000 – so he could “buy a house”.

Dart counter-claimed for £1,500 for damage to the bus, loss of driver time and legal costs. The company was at first more determined than Murphy to take the case to court.

The mediator was played by Judith Kelbie who, like all Trust Mediation’s team members, is a volunteer and lawyer with experience in personal injury claims. Kelbie was non-threatening, telling participants to call her Judith. She congratulated everyone for agreeing to mediate.

“Whatever’s offered or said today can’t be talked about if you go to court later,” she said. “I’m not here as a lawyer to give legal advice and I’m not here to judge or impose a solution. I’m here to facilitate yours.”

Not surprisingly, the defendant did not agree to pay out £100,000. But Murphy came across better than expected, providing proof of a broken wrist and pay slips to show he had been working as a pot-man in a pub. It was also disclosed that the bus driver had been involved in 20 accidents in the past year.

Meanwhile, the mediator helped Murphy to see that he would not receive the sum he had asked for. Also, if he went to court, the outcome depended on whether the judge was sympathetic and he might end up with nothing. So, after some haggling, he accepted Dart’s offer of £10,000 for damages and £20,000 for legal costs.

Even if a defendant like Dart is in the right, a mediation settlement can still prove less costly for an insurer. Mediation isn’t necessarily about proving who’s right. Rather, it gives insurers a test run to decide how the case might go in court and whether it would be best to settle in advance.

There’s one catch: you might never truly know who you’re dealing with. Mediation participants are allowed to hold private, confidential meetings with the mediator during a session. During one of these private meetings, Murphy admitted to the mediator and his lawyer: “That was a great night. I was as drunk as a newt on a fence.”