At the start of December 2016, the National Health Service Litigation Authority (NHS LA) launched a new mediation service. Following a pilot scheme of just over two years, the service intends to open up a new way of resolving claims of clinical negligence, or other personal injury, made against the NHS.
This could provide a useful new path for victims, or their families, seeking the remedies they deserve. But is mediation right for you?
Before examining the potential benefits and pitfalls, let’s look at the basic details.
What is the NHS LA?
The NHS LA handles the defence of clinical negligence claims (as well as other kinds of negligence claim) made against NHS trusts. In the vast majority of cases, therefore, if you make a claim against the NHS, whether due to injuries caused by its staff or occurring on NHS property, it will be the NHS LA representing the NHS’s interests. Additionally, the NHS LA performs other roles, such as advising the NHS on ways to reduce the risk of negligence claims arising in the first place.
What is mediation?
Mediation is a method of resolving disputes whereby the two opposing parties meet in the presence of an impartial mediator. The mediator’s role is to try to work with the parties towards an agreement which both find acceptable. It is important to remember that a mediator is not the same as a judge; they will not determine which party ‘wins’, or who is ‘right’ or ‘wrong’.
The NHS LA’s scheme will use mediators from independent mediation bodies: Centre for Effective Dispute Resolution, Trust Mediation, and Costs Alternative Dispute Resolution
Why is the new mediation scheme being introduced?
The cost of clinical negligence claims to the NHS is increasing. Recent reports state this cost rose from £583 million in 2008 to £1.4 billion in 2015.
The reasons for this are hotly debated. The NHS LA argues that this is caused by the increased legal costs of people bringing claims. On the other side, associations such as the Society of Clinical Injury Lawyers contend that it is the NHS LA itself which causes the increases – stating that a large number of cases are needlessly drawn out by the NHS LA, only to be paid out at a very late stage. This would appear to be borne out by the statistics; of those cases where court proceedings were issued, 76% were later settled with an award of damages to the Claimant.
The longer that cases continue, generally, the higher the legal costs involved. This is due to the greater amount of work that goes into the case. Similarly, when court proceedings are commenced, legal costs also increase as evidence and witness statements must be prepared and procedural obligations to the court complied with.
With this background in mind, the new NHS LA scheme clearly aims to resolve cases a lot sooner and at considerably less expense. Such a goal could benefit everyone concerned. However, it is paramount that Claimants should achieve fair and just results, and the potential exists for the mediation scheme to deny this to some. It is important, therefore, to be aware of whether mediation is a suitable means of redress in your situation.
Would mediation be suitable for my case?
Besides making the process quicker and less expensive, there are other benefits to using mediation as the means of resolving your case.
You may be looking for non-monetary remedies, such as:
- an apology
- recognition or acknowledgement of the harm you have suffered
- a face-to-face explanation
- assurances that what has happened to you will not happen to anyone else
For these objectives, mediation can frequently provide the answer. In fact, mediation will often provide a better opportunity for achieving these aims than court proceedings – where negotiations are often conducted at a step removed.
However, when wishing to pursue your legal rights to financial compensation, mediation can present some potential dangers:
- Settling your claim too early – An agreement suggested at mediation may appear attractive. However, if you are still suffering with symptoms from your injury, or have not yet obtained medical evidence to ascertain the full extent of your injuries, there is a risk that any future unforeseen treatment costs will not be taken into account.
- Under-settling your claim – The duration and severity of injuries has an impact on their value. If you sign an agreement with ongoing symptoms, you may not be fully compensated for your injury if it persists for longer than anticipated.
- Time limits to your claim – The law imposes time limits on claims. In general, for personal injury and clinical negligence claims, you have a period of three years in which to pursue your claim from the date the injury was caused (or the date you found out you had been injured). This means that you must either settle your claim within those three years, or commence court proceedings to ‘protect’ your right to claim. Entering into mediation does not give this same protection and so if an agreement is not reached, other legal avenues for your claim may be no longer be open to you.
There is a lot to bear in mind and all of these potential pitfalls highlight one crucial point: always seek legal advice.
The importance of taking specialist legal advice
The NHS LA’s leaflet from the pilot of the mediation scheme states having a lawyer present at the mediation is “not obligatory”. This is technically correct; however, as outlined above, there are a number of ways in which your interests could be adversely affected if you do not have a legally qualified representative looking out for them.
Representatives of the NHS LA will be present at mediation hearings, acting on behalf of the NHS trust you are claiming against. These representatives will be experienced in dealing with claims, and this could easily create inequality if you are not similarly represented. Also, whilst the mediator is impartial, their job is to try and achieve an agreement; they are not necessarily concerned with whether the agreement between the parties is a fair one.
Any agreements reached through mediation are legally binding if they are drawn up in written form and signed by both of the parties. This makes it entirely possible for you to unintentionally compromise your legal rights. Having someone present, on your side, who can explain the consequences of signing such an agreement is invaluable to protecting your interests.
How Truth Legal can help
If you have suffered an injury as a result of poor medical care, please do not hesitate to contact us. We can discuss all aspects of your case and explore whether mediation could be suitable for your situation.
Our head office is in Harrogate but Truth Legal also has virtual offices in Manchester and London. We are more than willing to sit down with you for a free, no-obligation consultation and to discuss any ways in which we can help you.
You can get in touch either by telephone on 01423 788 538 or by emailing us at [email protected]