Before we dive into the detail of the pros and cons of mediation, and whether it will help your own clinical negligence claim, let’s understand the main issues:-
1) What does mediation mean
2) Where does mediation ‘fit’ in a claim
3) What is involved in mediation
4) The major benefits for claimants
5) The possible outcomes of mediation
6) What happens if claimants do not agree to mediate
1. What does mediation mean?
In short, mediation is a conciliatory process aimed at resolving a legal dispute. It is particularly popular in clinical negligence claims given the endorsement by the National Health Service.
As a claimant it allows you to work together with your opponent in a private forum with solicitors present and with the expert help of an independent and highly skilled ‘mediator’. The goal generally is to settle the claim.
The best way to remember mediation is as a private forum/ alternative to a trial which can be stressful, costly and public.
2. Where does mediation ‘fit’ into a claim?
As a claimant on your journey in a clinical negligence claim, which we recognise can be stressful at times, you can reach the end of your claim, let’s call it your “final destination”, in one of three ways.
a) Your claim may be settled before it reaches a public trial and this can sometimes be achieved by making written and sometimes verbal settlement offers. As you receive compensation in the claim, there is no need to go to the trial. Another way to settle the claim is by mediation.
b) If settlement is not agreed, say if the treatment is defended or the amounts you claim are disputed, your claim could reach a trial, to be determined by a judge at a trial. This can generate publicity for both parties and can be a traumatic experience for both claimants and defendant. Don’t panic though because claims rarely get to a trial. Even those reaching a trial may have held a previous (unsuccessful) mediation.
c) Very rarely claimants are advised to “discontinue” i.e. walk away with no settlement. This will generally only happen when new factual or expert evidence comes to light which affects the prospects of winning at trial, for example, if an expert changes their mind during the joint meeting with the defendant’s experts. Most claims with good merits proceed to settlement. Even with this third option, sometimes mediation can still take place.
Mediation can play a vital part in all three of the potential routes set out above. It generally expedites the “final destination”, achieving an earlier settlement of your claim.
Mediation can take place at any stage in the claim (even before Court proceedings are issued) and can be initiated by either the solicitors for the claimant or defendant/s.
3. What is involved in mediation
At a mediation the claimant (that is you) and defendant (the doctor, nurse or hospital/Trust) will be in separate rooms, and brought together by the mediator at certain times, usually at the start in an “opening session”. The parties will be able to say if they feel uncomfortable coming face to face and no one will be forced into anything. It is a voluntary process and the claimant cannot be forced into mediating, although there may be consequences in legal costs if a party unreasonably fails to mediate (see section 5 below).
The mediator is completely independent and is selected jointly by both parties. It is someone you both have trust and confidence in and normally (but not always) the mediator has legal experience in the clinical negligence field. The mediator will be working hard to listen to both of your view points, and helping you to understand the other side’s views too. The mediator’s main goal is to resolve the dispute and to avoid a court room trial.
A mediation can last from a couple of hours up to a whole day sometimes (there is no set time limit). The venue for the mediation is agreed by both parties and usually in a convenient location for the claimant. Solicitors for the claimant and defendant generally attend mediation. The parties can at any point in time walk away from the mediation. That’s not to say that a party should threaten to walk out because the mediation isn’t going as they had hoped. Often mediations require patience and can be long.
4. The major benefits for claimants
There are many benefits to mediation:
- It is a completely confidential process and anything said by any parties (claimant, defendant or mediator) can never be repeated at a trial. Indeed, the outcome of the mediation i.e. any settlement figures, are not permitted to be shared because it is confidential. A legal agreement will be prepared at the end of mediation and signed by the claimant and defendant.
- It allows claimants to explain the impact of the negligence, and the claim, on their life. Some claimants like to do this face to face speaking directly to the defendant, others prefer to do that through the mediator. Some claimants have found the mediation to be part of the healing process in a claim, even cathartic to an extent.
- Defendants can provide full and frank apologies, sometimes face to face or through the mediator or possibly a written apology.
- It enables the parties to agree on some remedies which a Court has no power to order, such as agreeing “learning points ” for the defendant to apply moving forward to reduce the risk of the negligence affecting other patients.
5.The possible outcomes of mediation
In most cases, the claim settles at mediation or shortly after. This means that claimants reach their “final destination” faster and without the stress and publicity of a trial.
Mediation is often more flexible for the parties and generally achieves good outcomes for claimants.
In the minority of cases where mediation does not settle the claim, parties find that the issues are narrowed and become simpler to navigate before and during a trial.
6. What happens if claimants do not agree to mediate
Mediation is not compulsory and sometimes may not be right for a claimant or the timing may be wrong (say if the claimant does not have their evidence ready). If mediation is proposed by the other party and/or the Court and the claimant “unreasonably refuses” mediation then the Court could, later down the line, impose penalties in costs against the claimant. There are a multitude of court decisions on cost penalties and when a party is deemed to reject mediation “unreasonably”.
How we can help claimants
Based on our experience, most claimants reach their “final destination” sooner by using mediation. The conciliatory approach is generally liked by our clients and is considered as a less stressful, and more flexible, alternative to a trial.
Our dedicated team of clinical negligence solicitors are experienced in mediation and will advise you on whether initiation, and participation, in mediation at this stage of your claim is reasonable and, most importantly, in your best interests.
With our main office in Harrogate, North Yorkshire, but with virtual offices in York, Manchester and London, my team help injured people throughout the country. Please contact us for a free, no-obligation consultation with one of my brilliant injury solicitors.