Clinical negligence lawyers back greater use of mediation

Clinical negligence lawyers have backed plans for greater use of mediation to resolve disputes after the NHS Litigation Authority (NHSLA) invited applications for the provision of its mediation services.

The procurement process follows the completion of a two year pilot to test the usefulness of the mediation process. It focused specifically on fatal and elderly care claims and invited feedback from participants.

Flora McCabe, principal associate in clinical negligence at Mills & Reeve, said mediation had a role to play and condemned the 'litigation culture' that saw NHS trusts pay out more than £1.4bn last year.

'One of the main problems with the current climate is that parties become entrenched, costs escalate, and both sides become preoccupied and highly distressed by the situation.'

'A big advantage [of mediation] is that pro-active steps can be being taken by both sides. Engaging in mediation can send a clear message to all involved, but perhaps particularly the patient, that the complaints or claims are being taken seriously and everyone is engaged in trying to resolve the issues quickly.'

She continued: 'For clinicians it can also be helpful to engage in a process that is confidential and away from the public eye. It can protect clinicians from witch hunts in the press or otherwise and will stop the 'domino effect' of people hearing about settlements and trying to follow suit.'

James Bell, head of clinical negligence at Slater & Gordon in London, said mediation had been 'very under utilised' by lawyers in his sector.

'I understand that the NHSLA may well sometimes not be able to sort the wheat from the chaff but denials of liability on cases with good merits happen too frequently. The problem is then that court proceedings in their current format are a very expensive and time consuming way to conduct litigation,' he explained.

'I would therefore strongly support a scheme which proposed pre-issue mediation to allow all parties to review the evidence in a 'without prejudice' environment with a view to at least dealing with liability, if not quantum, issues. I have experience of mediating two cases with the NHLSA CEDR pilot and found the scheme very effective in resolving claims.'

The invitation to tender comprises of two 'lots' covering mediation services to resolve claims for personal injury and clinical negligence and those arising from claims for legal costs.

The NHSLA anticipates that the contract(s) will awarded for an initial period of two years, commencing 5 December 2016. The total value of the contract is £160,000 and the authority is open to lots being split between providers.

Helen Vernon, chief executive of the NHSLA, told Solicitors Journal that mediation was an 'excellent forum for dispute resolution' in the health service.

'We fully embrace mediation and believe that there is an appetite in the legal community to do more in this area. We have used mediation to good effect throughout our 20 year history, including in high profile cases and group actions,' she said.

'We are delighted to be building our capacity to offer mediation services following this procurement exercise and look forward to launching the new service in December.'

This year's NHSLA annual report revealed that mediation was offered in 91 cases. Of the 49 that were accepted, 47 were completed. Of these, 81 per cent were settled, with 61 per cent achieved on the day of the mediation and a further 20 per cent a short time after.

Nina Ali, a clinical negligence partner at Hodge Jones & Allen, said that mediation could play a larger role in resolving clinical negligence disputes as long as the claimant entered the process 'fully armed with the information and evidence that they need'.

'In particular, the claimant must have sufficient time to investigate and obtain legal advice and representation and be able to access independent medical expert evidence, both on liability and current condition and prognosis, as necessary.'

McCabe is in agreement, warning that early mediation could limit the ability of both parties to investigate low value claims which may involve complex legal issues.

'It is no good if parties are rushed in their investigations or cannot complete their legal reviews. Clinical negligence claims are often very complex and the value is not necessarily determinative of the complexity,' she commented.

'Expert evidence can be crucial and there can be lots of documents to wade through and witnesses to approach. All sides would have to be reassured that corners were not being cut just for the sake of early resolution. There would also have to be guarantees that financial settlement was not a natural outcome of mediation.

'There needs to be an end to the compensation culture and one way of doing so is to ensure that the tendency to pay out to 'get rid' ends and instead the issues are fully explored in a confidential setting.'

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @sportslawmatt