Meet our Mediator: Gerard Martin KC
September 8, 2026
Finding common ground: Gerard Martin KC on mediation in high-value personal injury and clinical negligence claims
1. You’ve spent decades resolving some of the country’s most complex personal injury and clinical negligence disputes. What made launching a specialist mediation practice the natural next step, and how does that experience shape your approach?
My career has involved taking part in serious injury litigation for more than 35 years, and for most of that time I have been convinced that the best way to achieve a satisfactory outcome for my lay clients has been to engage whenever possible in consensual litigation. This means openly discussing with the insurer and their lawyers what might be the way forward in the proceedings and whether that can be agreed, and then if agreement is achieved, working to that agreed plan.
In my experience consensual litigation achieves a quicker resolution of the case at less cost and with greater client satisfaction for those reasons. It seemed to me to be a natural next step for me to pursue the efficacy of consensual litigation by using the tool of mediation to bring parties together in an attempt to overcome difficult issues and to help all concerned to achieve a resolution of the case.
Mediation is an efficient tool to be deployed at the right time. It is something I believe in. I like to find solutions to problems. It is so much easier to find a solution when the parties are not under the stress they would face at trial. They are able to have private confidential discussions with their mediator and they remain in control of the proceedings as the mediator can take no decisive step without their consent.
2. Complex catastrophic injury claims involve far more than agreeing a headline settlement figure. How does your experience help parties navigate those wider issues?
My experience built up over the years has taught me that to achieve a satisfactory settlement both sides have to feel comfortable in coming to the negotiation. That means for all concerned, careful preparation to ensure mastery of the facts and relevant legal principles is essential. In turn both sides need to feel they have given and received the disclosure of documents to which they are entitled. To this end pre-mediation meetings by the mediator with the lawyers and clients on both sides are important, to get to know the people involved, their case and their concerns before the mediation.
In terms of managing the lay client’s expectation, that requires liaison between the mediator and both legal teams as to the issues to be resolved. Establishing the parties have confidence in the impartiality of the mediator is essential. The parties can ask for the mediator to provide an evaluative mediation in which he expresses his views on the merits of each party’s case.
3. What qualities distinguish a successful mediator in high-value personal injury and clinical negligence cases?
The most important quality is a reputation for being a good listener, the ability to listen to what is being said, and not said, by the parties and their representatives, both in the position statements, pre-meetings and the mediation itself. The ability to engender in the parties a confidence that they have in the mediator that he will always be impartial is also important.
Another key quality in the mediator is the ability to challenge appropriately views expressed by a party when necessary, and the skill to know when the time is right to make that challenge. Patience and a sense of humour can be useful too. It helps to have had many years’ experience in this sector of work. The mediator needs to be able to create a sense of trust in both parties.
4. High-value claims often involve entrenched positions and strong emotions. How do you help parties move beyond impasse?
Ensuring each party feels in control of the process is important. The mediation, when in private session with each party, is the time when each side must feel listened to and understood by the mediator. Establishing at the outset what the party hopes to achieve from the mediation is the first step in the process to facilitating a more receptive approach to the concept of negotiating away from a starting position.
Firmly held views on both sides of a mediation are not uncommon. The mediator can facilitate looking at the case from the other side’s perspective. Considering again what might be won and what might be lost if the case went to trial when put in a realistic way by the mediator might cause more reflection by a party leading to re-evaluation. Further, if the parties request it, the mediator can share his own evaluation of the merits of the case with both sides.
Strong emotions from the parties are also not unusual in mediations. Being able to voice those feelings in a private session with the mediator may help, or if constructive they could be expressed in a plenary session.
Sometimes strong emotions have been generated for good reason but nevertheless based upon misunderstandings of a factual background which have persisted up to the mediation, which once expressed at the mediation can be discussed and misunderstandings corrected.
Just such an occasion happened recently in a mediation to which I was a party. A Trust had made a mistaken assumption about photographs taken of the infant claimant by his mother at various times on the day of the incident whilst an in-patient at the hospital. The breaches of duty led to very serious injuries, that then led the Trust to plead its case that the photograph had been tampered with to make the claimant’s condition appear worse than it was. That pleading caused huge offence to the claimant’s mother involving as it did the implicit allegation of deceitful behaviour by the mother. It was not until the mediation that the Trust realised it had made a factual error leading them to the erroneous view of tampering, that had caused such offence. They then gave a forthright apology at the mediation that then eased the emotions being felt and matters then proceeded to a reasonable settlement of the liability issue.
5. With the courts placing increasing emphasis on mediation and other forms of ADR, when should parties in catastrophic injury claims be considering mediation, and what factors influence that decision?
There is no reason why an early mediation cannot be achieved e.g. prior to the commencement of proceedings. That said, my experience has been that in catastrophic injury cases, the parties wish to await the outcome of joint discussions between the experts before agreeing to meet in mediation. By this stage the issues between the parties have crystallised, disclosure has happened and all the evidence for trial should have been revealed. It is only at this stage that the parties’ representatives can formulate their final advice on the strengths and weaknesses of their respective cases. To mediate before this stage would be unusual, and absent an explanation, an earlier mediation would raise questions in the party not requesting mediation as to whether this was a sign of weakness in the opponent’s case.
6. What’s the one thing parties can do before a mediation to give themselves the best chance of reaching a successful outcome?
The one thing a party can do to achieve a successful mediation is to have clear in their minds the realistic outcome they wish to achieve. Realism requires being open to advice upon the strengths and weaknesses of their case. Success in the mediation requires a decision maker to be available to receive the advice and make a decision.
It would be as well to remember the wise words of Megarry J “the law reports are full of the wrecks of unsinkable cases.”
Gerard Martin KC is an accredited mediator with the London School of Mediation and is available to accept mediation appointments in high-value personal injury and clinical negligence disputes. To discuss a potential appointment, please contact Neil Wright: Wright@exchangechambers.co.uk
