Having mediated personal injury and clinical negligence disputes for the past 13 years, it is pleasing to see that there are now signs of modest satisfaction that mediation really has begun to be understood and used, particularly after its frustratingly slow development during the early part of that period. The fact that CEDR was able to launch its new PI Unit (PIU) at Thompsons, the well-known national claimant firm, attended by other firms and defendant insurers such as AXA (who along with Thompsons are new members of CEDR), was a huge testament to these organisations' view on ADR, signifying an exciting development in the industry.
CEDR's PIU was created to ensure quality ADR services are available to resolve disputes of all sizes in an appropriate way. The cost benefit of mediation is easy to justify in major five, six and seven-figure claims, however it has been harder to justify it in the fast-track cases, where face-to-face mediation is affordable on a time-limited basis very early on the process, preferably before issue of the claim. Contained within CEDR's unit is:
- A panel of experienced PI mediators
- Time-limited lower cost mediations for lower value cases
- Telephone mediation where a full mediation may not be necessary or justifiable
- An evaluation scheme for single-issue disputes where a recently retired District Judge will give a view (binding or not at the option of the parties) as to how another Judge is likely to find on that issue.
There are some important points to make on this suite of offerings. Firstly, they are not all about mediation. An inexpensive evaluation from the kind of person who will end up deciding a claim seems to be a useful addition to the litigator's toolkit. Secondly, they do bring ADR and mediation to a much wider potential audience. CEDR has piloted telephone mediation with Allianz, another insurer actively looking at practical deployment of mediation in a whole range of claims. This handled "stuck" claims of all types (Road Traffic Accident, Employers Liability and Professional Liability) shortly before issue, and found that there was a surprising willingness from claimant solicitors to advise clients to participate.
My many years of advocating mediation at PI conferences, have always inevitably featured claimant and defendant lawyers arguing that it is always their opponents who turn mediation down. The CPR abolished mediation proposals as a sign of weakness at a stroke ten years ago, or so we should all believe and I hope recent experience shows that such trumping is obsolete.
That raises the question of why, despite recent advances, ADR and mediation still remain under-used. One frustration is that its very success lies in its confidentiality, which inevitably inhibits wide publication of its successes. The world has to depend upon "they-would-say that-anyway" general assertions from organisations like CEDR. Not until the rare event of parties going public can we all learn what they think of the litigation and mediation process, like the Scottish claimant who recently said that its chief benefit was to provide him with a forum to say his piece which had been denied him by the litigation process for five years till then.
So, why else is mediation under-used? It seems there is still a considerable degree of fear and ignorance afoot about mediation, which has struck the Master of the Rolls forcibly in speeches he gave last year. Why do something new which might expose your risk analysis or negotiation technique while your client sits beside you and your opponent opposite? And why share the limelight with a mediator? These often unexpressed, but real fears about participating in mediations have little substance in reality, especially with the training available. Similarly, round table conferences give rise to similar risks, however a mediator actually creates more space for coping with the pressures of negotiation, while at the same time ensuring a voice for any party who wants to have their say.
There are undoubtedly financial pressures on claimant and defendant lawyers in PI cases, with opportunities to earn large sums on a given case if a success fee, based on time spent and work done, is allowable. Little has emerged about other unsuccessful cases funded by success fees, because no lawyer wants to admit to failed cases! Substantial referral fees also raise the requirement to earn back the price of acquiring that case. Neither of these funding features incentivises early settlement, which is precisely what the Woolf reforms sought to make possible through front-loading. Must we not admit that these pressures are not necessarily in the interest of the parties, both claimant and defendant, but rather the lawyers? Even claims handlers and managers want to keep jobs live in these tough times, so that there is a hidden incentive to keep the claims process fed with work. Importantly there is the counter-argument that a process, which generates quick cash flow and satisfied clients, is highly valuable in a recession.
Nor are the interests of defendants remembered much, often excluded from claims against them, yet who (if we are to believe the advert with the dead child in every corner of the driver's imagination) have their own concerns.
Employers of claimants in PI claims have much to bring to settlement discussions through restoring a claimant's future prospects by exploring renewed or changed suitable employment. This may ultimately offer a chance to moderate future losses, and above all offer a sense of restored respect to claimants. The most important feature of the Scottish case mentioned above was that the claimant is now back working for the defendants on health and safety education, made possible through the mediation. Mediation is an ideal forum for involving defendants creatively.
However, if the legal profession is not enthusiastic about early settlements, what else can be done? Evidently, the courts must police the effective delivery of the pre-action protocols. In the vast majority of cases, enough information should be generated for a serious attempt at settlement to be made before proceedings are issued. This is, after all, what was intended, at the cost of newly required additional work to "get them up" to that point. This is also why the Protocols were all amended in the 41st edition of the CPR to standardise wording for virtually all litigation requiring ADR to be tried then, with costs consequences threatened if not tried. A readily available procedure was recommended by which parties could "take such serious steps as they may be advised" (to quote the form of ADR Order approved by the Court of Appeal. Too few mediations take place pre-issue of cases, which could well be settled then, and that most have taken up almost all the limitation period before being issued. Most of my mediations are late stage litigated cases, often where a round table conference has failed to settle it. What a waste of time and money if this could have been attended to earlier – and was the claimant and the defendant consulted about timing?
One temporary answer is that an example is made of claimants and defendants who fail to mediate before issue in several high profile and reasonably settlable cases. The word will get around in a system devoted to precedent and behaviour will be permanently modified. Once mediation gets built into ordinary practice, as I hope new encouraging signals from claimants and defendants will achieve, without such draconian sanctions, all will be well for the parties who would like a say and in any event would like their claim finished quickly. Amongst those looking at this new approach Thompsons' Cardiff Office Team Manager, Catherine Cladingbowl, said on the matter, "We are excited by the prospect of mediating on more of our cases. Our clients will certainly benefit from reaching an early and amicable settlement where possible without having to go through a sometimes lengthy and stressful litigation process."
For more information see: http://www.cedr.com/CEDR_Solve/piu/Personal_Injury_Unit.php
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