The number of claims being resolved through mediation has been increasing steadily over the last few years, yet many claimants do not fully understand what mediation is. Here we take a closer look at what mediation is, how the process works, how it differs from going to court, and what the benefits of mediation might be.
WHAT IS MEDIATION
Mediation is a type of dispute resolution where an independent, neutral third party - the mediator – facilitates negotiations between the parties to help them reach a mutually acceptable resolution to the case. Mediation is confidential, less adversarial and conducted on a without prejudice (off the record) basis. Mediation can take place at a legal representative’s office, online or neutral venue but does not involve going to court.
WHAT CAN I EXPECT AT A MEDIATION
A mediation is more informal than a court hearing. The neutral mediator will know all the facts of the case ahead of the mediation and will be informed of what each party wants to achieve from the mediation. He/she will normally invite one party to set out their position and thereafter there will be discussions about the events leading to the claim. A claimant may choose whether he/she wishes to be party to discussions .Some claimants tell us they want the opportunity to speak directly with the opposing side and explain the impact the events leading to the claim have had on them and their family, and other claimants tell us they want to be kept informed of discussions but do not wish to become face to face with either the trust representative, doctor or any of the lawyers. This is entirely a matter of choice for the claimant.
A claimant will not be expected to answer direct questions. There is no cross examination of a claimant as would be the case at a trial. Parties can articulate their desire for alternative outcomes such as apologies and procedural changes as well as compensation. All discussions are completely without prejudice which means that if a resolution cannot be reached the litigation can proceed without either party seeking to rely upon anything that was said at the mediation.
If a settlement is reached the parties’ legal representatives will draw up a final order and lodge it at court.
THE BENEFITS OF MEDIATION IN CLINICAL NEGLIGENCE CASES
Most Clinical Negligence cases involve very complex issues and can take many years to reach a conclusion. They are notoriously expensive to run involving considerable expert input and evidence. For claimants emotive and sensitive issues are usually involved, a claim may have arisen as a result of the loss of a loved one or caused life changing injuries and for health care professionals’ reputations and careers may be at stake. These factors and the cost and time involved in litigating a case through to a trial mean that for all parties the litigation process is likely to be an all-encompassing stressful experience. Mediation can enable parties to not only achieve a financial resolution but can also achieve outcomes not possible purely through litigating the case to a final trial.
Let’s take a closer look at some of the potential benefits of mediation:
Reducing Legal Costs:
According to the NHSR annual report 2023-2024 Claimant legal costs for clinical negligence claims exceeded £500 million in the year ending 2024. For cases where damages were less than £100,000 the average legal costs were just under £55000. Trial costs alone can reach five figure sums given the cost of barristers and experts attending. In contrast an average mediation will cost around £3000.
Speed:
Most clinical negligence case takes many years to reach a trial and can then run for days or even weeks. Most mediations can be arranged within a few weeks and usually last day at most.
Emotional Closure:
The need for this should not be underestimated. Many claimants start out on the clinical negligence journey simply wanting answers and an apology, yet the only form of redress that the court can provide is financial compensation. It is not unusual for trust members to attend a mediation in addition to lawyers and there can be the opportunity to speak directly to the claimant about the circumstances leading to the claim and offer an apology.
Alternative outcomes:
Parties can agree outcomes beyond damages such as changes in procedures to prevent future errors which clients often tell us can be as important to them as financial recompense
CAN I INSIST ON A MEDIATION
It is always possible to invite a party to a mediation. The Civil Procedure Rules encourage the use of Alternative Dispute Resolution (‘ADR’) and the court will expect the parties to consider mediation or other type of ADR. The court has the power to penalise parties who unreasonably refuse to engage in mediation. However not all cases are suitable. If there are still issues such as the effects of the injury to investigate mediation may be premature. If liability is firmly denied and the opposing side is unwilling to engage mediation is unlikely to be effective.
Sarah Grogan Legal Director and Specialist Medical Negligence Solicitor from MDS, said “Whilst Mediation may not be possible in every case, in my experience it is always worth considering. I can recall many complex cases where the issues between the parties seemed unsurmountable yet at mediation, we were able to find a path to a resolution that all parties were happy with. Not only that, many clients tell me that pursuing a claim wasn’t just about achieving compensation and mediation offered them the chance to have their story heard without the stress of going to court “
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