By Paul Balen Mediator Director, Trust Mediation Ltd
(Estimated reading time: 3 minutes, 7 seconds)
Six months in from lockdown, the fall-out for clinical negligence and personal injury practitioners is clear – the lines of communication have been stretched and the courts are log-jammed. Concluding claims as quickly as possible has become a key priority to aid the cash-flow of both claimant and defendant firms.
Wise practitioners therefore have been looking hard at Alternative Dispute Resolution (ADR) which now, like never before, has come into its own. Not only has the pandemic accelerated the uptake of dispute resolution but judges are, without question, penalising parties who either do not embrace ADR or simply pay lip service to it.
They have also penalised an unsuccessful defendant with indemnity costs because it had refused to consider ADR on the grounds that “no purpose would be served” because it had a “strong defence”; and penalised a defendant with indemnity costs for failing to file a statement explaining refusal to engage in ADR.
All these cases concerned pre-lockdown events. It is not difficult to imagine judges’ responses to similar situations since then.
Post lockdown it is also easy to see virtual mediations continuing to follow their success in replicating the face-to-face version. Whichever is used, mediation should seriously be considered as a means of resolution – just as soon as you are in a position to advise the client on appropriate settlement parameters. Waiting for there to be a trial bundle is simply not necessary.
Whilst there will always be a place for direct negotiations and joint settlement meetings, the introduction of a neutral mediator, particularly one steeped in the subject matter, can often accelerate resolution and help the parties achieve that quicker and at far less cost than awaiting a judicial decision.
Mediations are now regularly heard much earlier in the process than JSMs. Indeed, around 40% of mediations are now pre-issue. With the majority of our mediations now being held before a CCMC, feedback strongly suggests claimants (and it must be remembered that, for all the lawyers’ investment in the case, first and foremost it is the claimant’s case) far and away prefer their involvement in a relaxed collaborative negotiation – and as early in the process as is viable.
 EAXB v University Hospitals of Leicester NHS Trust 6th January 2020
 Wales v CBRE  EWHC 1050
 DSN v Blackpool Football Club  EWHC 670
 BXB v Watch Tower etc  EWHC 656
The lawyer’s role in preparing for mediation should include:
- think resolution
- help the client to analyse the strengths and weaknesses of case
- work out and advise on settlement brackets
- ascertain ‘What would help the opponent provide resolution?’
An experienced mediator can help the parties by:
- facilitating the exchange of information
- uncovering and preventing misunderstanding
- keeping the parties engaged
- handling emotions and avoiding hostility
- assisting with case analysis and risk assessment
- sorting out difficult characters
- helping manage expectation
- breaking deadlocks
- facilitating thoughtful rather than reactive offers
- dissipating anger, frustration, and hostility
- planning and, if appropriate, choreographing plenary sessions – online if helpful
- organising and running the virtual platform
- providing a pre-mediation guided tour and venue for a pre-mediation conference
Experience since the lockdown has shown that, after some understandable fear of technology, practitioners (and indeed claimants) have increasingly embraced the virtual world and, along with it, a much more relaxed and collaborative approach than in the ‘real world’.
Claimants are always relieved not to have to go to court whilst, once compensation is achieved, costs can be negotiated then and there or failing that a substantial interim payment obtained something guaranteed to put a smile back on the face of the finance partner!
Trust Mediation runs free training sessions and pre-mediation trial runs on a virtual platform. Do please contact us for more information via email to firstname.lastname@example.org or calling 07767 673200.