It is clear from the report (and the defence lawyers would endorse this!) that the NHSLA has taken and continues to take firm measures to keep defence costs in check. But litigation by its very nature is not a cheap remedy and one of the alternatives raised by the report, which might resolve claims more cheaply, is mediation.
Mediation is a process of structured negotiation where discussions are facilitated by a neutral third party, the mediator. The mediator acts as an honest broker and his role, usually by a process of judicious intervention, is to assist the parties to resolve their dispute. The discussions are entirely without prejudice and remain confidential if the mediation fails and the litigation continues.
In the past clinical negligence lawyers have not rushed to embrace mediation as a means of dispute resolution. The pilot study conducted in 1995 had a very low take up rate and, despite moves by both the NHSLA and the Legal Services Commission to encourage mediation in appropriate cases, less than 16% of claims recommended as suitable for mediation by defence solicitors are accepted as such by the claimant’s solicitors.
It is right to say that mediation will not be appropriate in every case. It is unlikely to be used for high value claims, such as cerebral palsy, or if the parties wish to determine a point of law. However, mediation does provide advantages and a flexibility which the court process does not.
The prime method for resolving clinical negligence claims is and should remain through settlement discussions between the parties (usually conducted through lawyers). For a variety of reasons, such settlement discussions can break down, at which point it is appropriate to consider whether mediation might break the deadlock.
Mediation offers the opportunity:
- to put the defence arguments directly to the claimant. This is of particular relevance should the defence feel that the claimant’s solicitor is simply not passing on to his client the arguments raised
- for the clinicians to explain to the claimant direct the reasons why particular treatment decisions were taken and, if wrong, to offer an apology
- to explain the steps which have been taken to ensure that there will be no recurrence where errors have been made
- to offer a non-monetary remedy, such as ongoing treatment or therapy
It has been argued that some claimants want their day in court and are seeking a vindication of their position from the trial judge. Yet the court process, being bound up as it is in formality and judicial precedent, is not the type of forum which is readily accessible to a claimant. Far more meaningful discussions can take place in the mediation setting. The claimant is able at a mediation to participate as fully as he or she may wish.
Often claimants are seeking remedies which a court of law simply cannot provide - the pilot study reported on a claim where the claimant’s real desire was to discover the burial place of her child. This she was able to do. Her wish became apparent in the informal setting of mediation; it may not have done otherwise.
Mediation also offers real advantages for the clinicians accused of negligence. It provides clinicians with a right to reply to the claimant outside the formal setting of a court. It removes from them the stress of appearing in court and gives the possibility of resolution of the claim without admission of liability and without the publicity which trials tend to engender.
Mediation can provide a far better solution to many claims than that offered by the litigation process. It is not in itself a cheap remedy as, to obtain full benefit, the lawyers must be fully briefed and able to argue their client’s case. Most mediation providers also charge a fee fixed by reference to the amount at issue, and this can be substantial. However, mediation has a high success rate in resolving claims and, if used appropriately, costs will be saved. It is also a far less stressful process - for both the claimant and the clinicians involved - than trial at a court of law.
Footnotes
1) Handling Clinical Negligence Claims in England – May 2001
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
