Image © Rawpixel Ltd
The NHS Litigation Authority (now renamed NHS Resolution from April 2017) recently launched its new Claims Mediation Service following a successful pilot and a public tender.
The tender specification demonstrated that quality was a high priority for the NHS LA:
“Delivery of high quality mediation services for the resolution of disputes arising from incidents, litigated and pre-action clinical negligence and personal injury claims and/or the high quality delivery of mediation services for the resolution of disputes arising from the recoverability of legal costs.”
Independent mediation organisations, Trust Mediation Limited and the Centre for Effective Dispute Resolution (CEDR) were appointed tomediate disputes arising from clinical negligence and personal injury and incidents and claims. Costs Alternative Dispute Resolution (CADR) was appointed to mediate disputes arising from the recoverability of legal costs. These organisations were awarded a 2 year contract commencing 5th December 2016.
CEDR is a long established, well respected organisation able to offer a depth of experience. Trust Mediation believes that specialist knowledge in the subject matter of a mediation enables them to quickly understand and overcome the issues between the parties. For this reason their panel of Clinical Negligence Mediators are all specialists in the field.
It is a fundamental principle of mediation that the mediator is impartial so that he or she can discuss confidential matters without reservation and assist the parties in identifying the issues between them and overcoming them to arrive at a mutually beneficial solution.
The mediation organisations are independent and well established and, further, independence is integral to the role of the individual mediator. It follows that the parties can have total confidence in the independence of the mediators involved in providing high quality mediation services under this scheme.
Lawyers are trained, and some would say very well trained, to prosecute or defend a claim for compensation for loss and injury arising out of alleged negligence. The fact remains that at the end of the day both parties cannot win the same case at the same time. There are many reasons why a case is unsuccessful, but it is suggested that significant reasons are that an adversarial system means that the parties are preparing their cases independently of each other and are often reticent about exchanging too much information and revealing their hand. To do so is often regarded as implying a lack of confidence in the case.
It is this failure to communicate, particularly by expert witnesses, which led to the addition of experts’ meetings to the claims process. These meetings have resulted in improved settlement rates between the date of the experts’ meeting and the Trial of the action.
However some cases can often be pursued for years before discussion takes place, whereas it is suggested that earlier discussion would frequently enable the parties to make a realistic estimate of their chances of success and resolve the matter much earlier on in the process.
Then there are the cases which do not settle at all. There may be good reason why some of them needed to go to trial.
Most people would accept that the adversarial system, with its concentration on financial benefit, sometimes does not assist a Claimant, who is looking for an explanation or vindication, or simply wishes to be taken seriously. In those cases financial reward was never the driving feature and the Claimant may be frustrated that he / she have no opportunity to explain the real issue.
The medical professional, whose reputation is at stake, may also be frustrated by the lack of dialogue and in the meantime trust between doctor and patient can be destroyed and both the patient and the medical professional will suffer considerable stress.
Experience shows that the vast majority of cases, which go to mediation, are resolved as a result. Experience also shows that clients like it. They are involved, they get the opportunity to address some issues, which are really bothering them, but which are not strictly relevant to their legal case and indeed they can achieve outcomes which the Court would not have authority to provide. For example, the writer’s own experience is that in a recent case the NHS Trust offered to put a plaque on the wall of the garden to commemorate the sad death of a child.
The culture of litigation is changing and some Lawyers are now very keen on mediation and happy to support it in appropriate cases. Others remain less enthusiastic.
The writer has heard a number of reasons for this including bad experiences of mediation, which are largely due to the choice of mediator. Others have suggested mediation means compromise and they see no reason why their client should have to compromise their case. The answer to that is actually there are no rules to mediation. Parties are urged to attend with an open mind, but otherwise it does not necessarily follow that both parties will have to compromise. Sometimes it is an opportunity to persuade the other party to discontinue whilst they still can.
Usually however it is unhelpful for a matter to proceed to Trial with both parties feeling they cannot lose, because inevitably one of them will do so and an opportunity for each party to explain that compromise is appropriate seems to be an opportunity, which should not be casually dismissed.
Of course there is also a possibility that the Court might take a dim view of what is actually a breach of the parties’ duty to the Court, which may result in sanction.
The writer is not suggesting that mediation is appropriate in all cases and if the parties are able to discuss the issues between them, narrow down those issues and ultimately settle the case at an appropriate stage without the need for a mediator, then clearly they should do so. The writer is however suggesting that parties should embrace this new NHS LA scheme and mediate in appropriate cases.
www.TrustMediation.org.uk
Published by: