Professor Cam Wareham BSc, PGCert, LLM (Dist), DMedSc, DPodSurg, FCIArb, FRCPodS, FRCPS(Glasgow) is a respected Arbitrator and Mediator specialising in Dispute Resolution, with a focus on areas such as access to Healthcare, Interprofessional disputes, Provider disputes, and Professional Discipline. His expertise extends to handling disputes of a clinical and regulatory nature, showcasing a wealth of experience in navigating complex healthcare-related conflicts.
As a Professor at the University of Sunderland, Cam dedicates his academic pursuits to Health and Medical law.
Holding dual citizenship in New Zealand and Britain, Cam's influence extends globally, with a track record of being regularly engaged as an Expert Opinion in support of Litigation throughout England & Wales, Scotland, ROI, Australia, and New Zealand.
The recent decision of the Court of Appeal in Churchill v Merthyr Tydfill County Borough Council [2023] EWCA Civ 14161, confirmed the court’s support of ADR (Alternative Dispute Resolution), answering a number of issues as to it’s place in the litigation process. With it, we enter a new era whereby dispute resolution becomes further integrated into civil and commercial disputes.
Out of court dispute resolution in the personal injury and clinical negligence space is not new. In many respects, it is common practice for disputes to be resolved well before parties attend Court hearings. The National Health Service reports that of the 13,511 claims in 2022-2023, 80% were resolved outside of court via a range of means. Claims of a clinical and non-clinical nature were resolved with damages paid in 57%2.
The emergence of round-table meetings, negotiated settlement meetings or discussions between experts all contribute to the process designed to circumvent judicial intervention and use of court resources. The decision in Churchill, arguably takes us a step further.
What is significant about the case?
The decision in Churchill clarified the judgement in the earlier case of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 1 WLR 30023 in which Dyson LJ suggested that obliging parties to engage in mediation and other forms of (A)DR would obstruct their right of access to a fair hearing before a court and infringe their human rights.
The Court of Appeal in Churchill, clarified whether the court can lawfully stay proceedings, or order parties to engage in ‘out of court’ (Alternative) dispute resolution before proceeding further?
Yes, said Sir Geoffrey Vos, Master of the Rolls with whom Lady Chief Justice Carr and Birss LJ agreed. In doing so, the court ushered in the expectation that parties in dispute do everything reasonably expected of them to settle a dispute before recourse to litigation. With caveats in place to ensure that rights are not breached and that the process is reasonable and proportional in its aim to resolving issues, the court indicated its support for avoiding litigation where possible. Crucially, its decision openly supported the use of (A)DR as a method of using less formal means to resolution of disputes.
The Background
The decision followed the earlier proceedings issued by the Respondent, Mr Churchill. His property was adjoined by land owned by the Appellant (The Council). The Respondent claimed that Japanese Knotweed (a known noxious and invasive weed) had encroached from the Council owned land and into his. He claimed that he lost enjoyment of his property, damage and a reduction in its value.
Mr Churchill issued the initial proceedings. The Council (Appellant) applied for a stay, citing that its own complaint procedures had not been followed. The initial application was dismissed. The court applied the decision of Dyson LJ in Halsey v Milton Keynes General NHS Trust [2004] at [9] in that. “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on the right of access to the court.” In its subsequent appeal, the Council raised a number of points, from which three central issues arose. The first was whether Halsey was binding, the second concerned the Court’s ability to stay proceedings or order Alternative Dispute Resolution, the third considered what relevant principles must be considered.
Halsey
The Court of Appeal was asked to consider whether the decision in Halsey was binding. Rather than being considered to be a mere (obiter) ‘comment’ made by Dyson LJ, it considered whether it may be considered ratio decidendi, a central themed justification for the decision thereby binding all courts below it. The Court of Appeal held that it was not.
Staying the proceedings or ordering parties to attend ADR.
The Court of Appeal was asked to consider Mr Churchill’s submissions.
Churchill argued that his right to bring proceedings could not be circumvented by a requirement to pursue an internal complaints process which would not likely address his concerns.
He argued that no ‘secure statutory footing’ existed to allow such an impediment.
Following, he argued that any statutory impediment could only authorise intrusion to a minimal level sufficient to reasonably fulfil its objective.
The Council (with Intervenors) submitted that the Court may order a stay subject to three criteria.
1. It did not impair the right to a fair trial
2. that it was in pursuit of a legitimate aim
3. that its actions were proportional to that aim
In its consideration the Court of Appeal concluded that its authorities derived from within the jurisdiction, the European Court of Human Rights and the EU Court of Justice. It concluded that the court could stay proceedings in lieu of ordering Dispute Resolution, and that the impediment did not require any specific secure, statutory footing.
The relevant principles.
The Court of Appeal held that any Order or facilitation of a particular form of ADR must be at the Court’s discretion. Broad principles for the courts consideration were the merits and demerits of differing ADR methods, the process must not impair the right to a judicial hearing and it must be proportionate to achieving resolution of the dispute in a fair, swift and cost effective manner.
Although a fourth point was raised it subsequently failed. The Appeal (in part) was allowed, its decision heralding a clear sign of the courts position on the place of mediation (and other forms of dispute resolution) in the claims process.
The Importance of the decision to ADR
Whilst some may have been disappointed that the decision of Vos MR in Churchill fell short of specifying mediation (or any other form) as the preferred method of dispute resolution, others agree that the decision allows flexibility and avoids a ‘one size fits all’ model4,5. In doing so, Vos MR empowered courts to maintain some control in tailoring the form of resolution to meet the needs and wishes of the parties in dispute.
The decision escapes further criticism of ‘the introduction of mandatory mediation’. Whilst seen as an attempt to keep parties out of court in smaller actions such as those falling under the Small claims protocols, mandatory mediation has been criticised as bringing together unwilling parties in a ‘watered down’ attempt to resolve issues both damaging the reputation of mediation and the confidence of parties6.
The more strategic ‘open’ approach of the court of appeal, avoids this concern allowing for Dispute Resolution to become rather less ‘alternative’ and more integrated or inclusive as a mechanism in the overall resolution of claims, whether through the court or other means.
What impact does the decision have on clinical negligence and practice and the requirement to mediate (or undertake other forms of Dispute Resolution)?
Proponents of mediation cite it as being helpful in allowing parties to take control and ownership of their dispute, allowing novel methods of resolution to be tabled, allowing the possibility of apology or explanation to be given and issues to be agreed or put aside for further discussion. Many mediations settle on the day or soon after. The use of court time is significantly reduced7.
As the courts move forward in its support of Mediation, others have taken a different view. Detractors often point to the lack of power of the Mediator to offer a binding decision, the inability to compel parties to present themselves, or witness/evidence in support of their case and the potential to add an unfruitful or unnecessary step in the process8.
In part, some of the concerns will be ameliorated by the Court’s open support of ADR and its power to stay proceedings or order parties to mediation. However, it remains as to whether court ordered mediation will meet its objectives. What will be interesting, is whether Courts accept the new decision as being a tool in their armamentarium to dispose of cases, putting the onus back on to parties. Or whether they will be reticent to impose mediation or ADR for all and every case going forward.
What does it mean for the Expert Witness?
It is unlikely that Experts will be called to a mediation session (unless they are needed to explain a particularly technical or complex piece of evidence). It is likely that mediation will continue without the Expert and be focused on the positions put forward by the parties counsel (as remains the case currently). It is uncommon for Experts to attend anything other than meetings with their own party or where they are called before court. Counsel prefer to negotiate with other Counsel,
to a point where some remain uncomfortable with the claimant in the room.
What about other forms of ADR?
Courts within the Civil Procedure rules have always been able to order that parties narrow the issues by either round table meetings or by Experts meetings. The new ruling takes matters a step further.
Currently, facilitated negotiation or mediation relates to a structured meeting in which a mediator attempts to move parties from ‘zero sum’9 positions to meeting the needs (or interests) of parties. Counsel play a crucial role in these negotiations, often buffering the emotion, the expectations and practicalities of parties individual positions. It is often helpful when voices need to be heard, emotions and the ‘impact’ of the event needs to be ‘realised’. It is helpful where parties wish to see the other sides response to their concerns. The power in mediation is that almost any dispute can be mediated and for the most part, the profession of the mediator is irrelevant when compared with their skills in facilitation of discussion. The NHS Resolution scheme provides this opportunity for parties in dispute, using a small number of mediators who contract their services. The challenge for non-lawyer mediators however, remains that (despite the very technical nature of clinical complaint) lawyers tend to trust lawyers, even where a technical expert may have the requisite skills in both medicine and law. A criticism of the NHS scheme therefore, is inclusion of very small numbers of mediators who come with a healthcare background.
Evaluative mediation, provides a more nuanced approach. Whilst not able to compel parties to mediation, or provide a binding decision, the Evaluative mediator provides parties with a greater understanding of the merits of their claim. This may serve to provide parties with a more realistic understanding of their position, whether clinical negligence has occurred or whether quantum may be realistic. Whilst still a form of ‘mediation’, evaluative mediation provides a flexible and informal forum for parties to discuss matters with a skilled professional, who is in a position (often through qualification) to make a reasoned and close approximation to the value of the claim. It does however require a mediator to possess a number of skills, including facilitation, mediation, evaluation, clinical and legal skills. With smaller numbers of individuals having such an array of skills, evaluative mediation might be best reserved for very technical cases or recalcitrant parties who would benefit from the insight into the merits of their claim other than solely from their own advocates.
Early Neutral Evaluation (ENE), whilst useful in early claims or highly technical claims, is unlikely to feature heavily in the armamentarium of the Courts. Often conducted solely as a ‘paper exercise’ the evaluator is able to provide answers to discrete matters. Parties do not attend meetings and do not have an opportunity to air their grievance. Expert Witnesses who hold training in ‘evaluation’ and an understanding of the fundamental legal aspects of a claim may find their skills called upon more frequently at the pre-action stage, especially where ENE can be useful. Where the success or failure of dispute resolution turns on a technical aspect, ENE provides an opportunity for parties to provide evidence and an ‘opinion’ at an early stage in support of their claim with the purpose of heading off lengthy disputes over discrete but important issues. Whilst non-binding, the opinion of the Evaluator is persuasive and as such may carry significant weight in the eventual decision.
Arbitration of clinical disputes remains a final option although it is less common in England and Wales, Scotland, and Northern Ireland, than it is in the United States. As a very formal, binding decision process, it is more likely to be applicable to disputes relating to contracts, Healthcare and Life Sciences. Provided parties agree, Arbitration before a skilled legal and technical panel can be used with great success. Arbitration, having closely related judicial methods follows a similar procedure to Court. A panel or sole Arbitrator sits, hearing the case following procedural orders, evidence presented as written or oral testimony, examination and cross examination culminating in a ‘judgement’ known as an Award.Enforceability is possible through the application of legislation (Arbitration Act 1996). One might reasonably question the use of Arbitration given its proximity in style to a Court hearing. Arbitration does however carry a number of benefits over traditional court hearings. Procedures may be scoped by the parties, rules of evidence can be applied in a bespoke manner and the panel is frequently chosen by the parties for their expertise in both legal and technical skills. In the clinical negligence or quantum arbitration, the panel may consist of a medical professional, a legal practitioner and/or a patient representative. Despite its usefulness, Arbitration is likely to apply only in cases of a very technical matter, a large multi-national dispute (where international suppliers of drugs or products are party to the action), or an issue of quantum.
The decision in Churchill, has recognised the usefulness of (A)DR as an integrated tool in the management of civil claims through the judicial system. Its proponents cite high rates of satisfaction and success. Whilst less likely that Expert Witnesses will take an active part in mediation, their evidence may form an important part of the resolution process. Alternatively, their opinions may be expanded to ENE, proving useful in contributing to the early resolution of claims.
For Experts interested in Mediation training,SpecialistInfo offer accredited Mediation Foundation training over 5 days with the Society of Mediators. See link below for upcoming courses and more information: www.specialistinfo.com/mediation-course
References:
[1] https://www.judiciary.uk/wp-content/uploads/2023/11/Churchill.APPROVED-JUDGMENTS-2.pdf
[2] NHS Resolution, Annual Report and Accounts 2022-2023 (NHS Resolution 2023) https://assets.publishing.service.gov.uk/media/64c7c912d8b1a70011b05dfe/NHS-Resolution-Annual-report-and-accounts-2022-2023-web-accessible.pdf
[3] https://vlex.co.uk/vid/halsey-v-milton-keynes-793673961
[4] The Law Society: Why We Intervened in Churchill-v- Merthyr Tydfil (11 December 2023) https://www.lawsociety.org.uk/topics/civil-litigation/why-we-intervened-in-churchill-v-merthyr-tydfil
[5] CIArb: Joint Intervention Success as Churchill judgement allows the courts to order parties to mediate (29 November 2023), https://ciarb.org/news/joint-intervention-success-as-churchill-judgment-allows-the-courts-to-order-parties-to-mediate/
[6] Lawyer Monthly: The Pitfalls of Compulsory Mediation (30 November 2021), https://www.lawyer-monthly.com/2021/11/the-pitfalls-of-compulsory-mediation/
[7] Bogdanoski, Tony, Medical Negligence Dispute Resolution: A Role for Facilitative Mediation and Principled Negotiation? (2009). Australasian Dispute Resolution Journal, Vol. 20, No. 2, pp. 77-87, 2009 , Available at SSRN: https://ssrn.com/abstract=1438472
[8] Bennett, C. When mediation doesn't work. BDJ In Pract 36, 37 (2023). https://doi.org/10.1038/s41404-023-2049-z
[9] Zero Sum – ‘used to refer to a situation in which any win by one person always means a loss to another person involved’ - https://dictionary.cambridge.org/dictionary/english/zero-sum
[10] Arbitration 1996: https://www.legislation.gov.uk/ukpga/1996/23/introduction
[11] Wiradisuria, E.R., Susatya, D.H. and Bhawono, A., 2020, March. Arbitration as an Alternative to Non-Litigation Settlement in Medical Cases. In International Conference on Law Reform (INCLAR 2019) (pp. 121-125). Atlantis Press.
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