What is mediation?

Mediation is a form of dispute resolution in which an independent third party (the mediator) facilitates the parties towards a settlement. The mediator does not take sides but will listen and identify the risks and issues for both sides and work towards finding an agreement that both parties can accept.

Mediation differs from the traditional Joint Settlement Meeting by including the mediator as a neutral third party to assist the parties with negotiations in a structured but flexible and dynamic process.

Everything that is discussed at mediation is confidential and without prejudice. This means that if the mediation is not successful in settling the claim, nothing that was said at the mediation (or disclosed under the mediation umbrella) can be referred to by any of the parties.

The mediation process is entirely flexible. It can involve joint meetings with all parties present; individual meetings between lawyers for the parties, and individual meetings between the mediator and each of the parties where anything discussed with the mediator is confidential unless the mediator is given explicit consent to disclose it to the other party.

Mediation can happen at any stage of a claim including before the issue of court proceedings.

The move from litigation to mediation 

NHS Litigation Authority rebranded itself to NHS Resolution in April 2017 to emphasise its preference for early resolution instead of litigation. The then Health Secretary Jeremy Hunt made a mission statement confirming that the organisation “will radically change its focus from simply defending NHS litigation claims to the early settlement of cases, learning from what goes wrong and the prevention of errors”. 

On 5 December 2016, NHS Resolution launched a claims mediation service and awarded contracts to two mediation companies, CEDR and Trust Mediation Limited.

The injured party has the choice of mediator because the two mediation companies and their panels have already been approved by NHS Resolution. At Freeths we encourage clients to choose a mediator from the Trust Mediation panel as they are all clinical negligence specialist mediators who have the experience to deal with the unique complexities of clinical negligence claims.

NHS Resolution published a Five-Year Strategy which has a target of increasing the use of mediation in healthcare and reducing the number of cases going into court proceedings. Helen Vernon, Chief Executive of NHS Resolution made a statement in its 2017/18 annual report:

…we have been delighted to see the interest in mediation accelerate over the course of the year - we more than trebled our target of 50 with 189 mediations being completed in the year, of which 75% resolved on the day or within 21 days of the mediation. Our experience so far is that providing the time and the space for patients and healthcare staff to discuss what happened can mean a better outcome all round. We intend to build on the momentum and level of interest achieved so that mediation is no longer seen as novel in healthcare”. 

NHS Resolution has mediated more claims last year than in its entire history. It is clear therefore that there is a drive for mediation and we at Freeths see mediation as a welcome revolution in the resolution of clinical negligence claims.

What are the advantages of mediation?

Mediation can avoid the stress, expense and uncertainty of litigation or a trial. It can provide a swift, cost-effective and fair resolution of the claim. It can also offer a claimant more than compensation alone which is all that a claimant could be awarded by a trial judge. For example, a letter of apology or a statement of how a party has learned from what has happened and has put in place measures to prevent the negligent event from occurring again can all be agreed at mediation.

Injured patients can also be involved and play a significant part in resolving their claims at mediation. It gives our clients the opportunity to be faced with a representative from NHS Resolution or the opposing side who can give them a meaningful apology. It also gives them the opportunity to speak of the impact that the negligence has had on them as individuals. This enables the defendant and its representatives to see first-hand the individual who is at the centre of the claim. It humanises the process and gives the defendants a greater understanding of the way in which the negligence has impacted upon the injured party.

In our experience this is a very powerful tool and can assist the parties to reach a fair agreement.

A mediator’s role is to facilitate communications between the parties to encourage a dialogue and negotiations towards a settlement as well as to reality test each side’s position. During the confidential discussions that each party has with a mediator they can ask the mediator to share certain information with the other party which may assist them to understand a party’s position. The mediator helps parties to reach an agreement in around 80% of cases.

Preparing for a mediation

It is important that the parties attend a mediation with a clear view as to the risks involved in bringing the claim and as to the value of the claim and what would be a fair outcome. Whilst focussed on facilitating agreement between the parties, the mediator is not concerned with whether the agreement is fair to both sides. We as the injured party’s solicitors fully investigate the value of a claim to ensure that any agreement reached at mediation is in the best interests of our client.

As the injured party’s solicitors, we usually prepare a mediation bundle which is circulated to the mediator and the other parties in advance of the mediation. The other parties may add to the mediation bundle. Everything contained within the mediation bundle is served without prejudice and under the mediation umbrella. This provides the parties with a lot of flexibility as draft witness statements, expert reports or extracts of reports can be included on a without prejudice basis within the mediation bundle.

The parties should also prepare and if appropriate exchange position statements ahead of the mediation which set out their respective hopes for the mediation and the issues which are in dispute. The mediator will encourage parties to attend mediation with a flexible and open mind and if appropriate to be prepared to compromise.

Parties also have the opportunity of providing the mediator with any documents or evidence which they wish to provide to the mediator alone confidentially. This can also help the mediator to understand the dynamics, concerns and fears, knowledge of which may better inform him as to how best to assist the parties in their negotiations towards a settlement.

Our experience with mediation

We have successfully settled a growing number of cases at mediation ranging from small to high value (exceeding £1million) claims with several mediations in the pipeline to take place in the new year. We have seen first-hand the tremendous benefit that mediation can bring to our clients. It provides our clients with an opportunity to speak from the heart, receive a meaningful apology in a comfortable environment and to achieve a fair financial settlement of their claims without the trauma, anxiety and nerves involved in a court hearing.

Contact us

For further information please also visit our website at: http://www.freeths.co.uk/legal-services/individuals/clinical-negligence/

The Freeths Clinical Negligence Team has a national reputation for providing the highest quality advice for individuals who have been injured due to medical negligence, and our team is ranked at Tier 1 in both the Legal 500 and Chambers and Partners directory for 2018. Our team of specialist medical negligence solicitors are based in our offices in Derby, Stoke on Trent, Nottingham, Oxford and Milton Keynes. 

If you are concerned about the medical care you or a loved one have received, please contact one of our national team for an informal discussion about your circumstances. The Freeths national clinical negligence team is led by:

Jane Williams, Partner (Leicester/Nottingham/Birmingham) on 0845 272 5724 or jane.williams@freeths.co.uk

Siobhan Genever, Director (Nottingham/ Birmingham) on 0845 271 6793 or siobhan.genever@freeths.co.uk

Carolyn Lowe, Partner (Oxford/Milton Keynes) 0186 578 1019 carolyn.lowe@freeths.co.uk

Karen Reynolds, Partner (Derby/Stoke on Trent) on 0845 274 6830 karen.reynolds@freeths.co.uk

Paul Balen, Consultant (Nottingham) on 0845 050 3289 paul.balen@freeths.co.uk

For further information please also visit our website at: http://www.freeths.co.uk/legal-services/individuals/clinical-negligence/