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Mediating clinical negligence and personal injury cases – 2022 style

Whiteboard with text written on including the words mediation, dispute and negotiation

By Paul Balen, Mediator and Director of Trust Mediation Ltd

(Estimated reading time: 3 minutes 28 seconds)

It’s official! The letter ‘A’ is officially redundant.  Claims are now all about Dispute Resolution. As the Master of the Rolls said last year: “Courts are there to assist the parties find a resolution to their dispute and (A)DR is to be viewed as part of that process not an opt in”.

Below regular contributor Paul Balen shares his experience of 5 years’ clinical negligence mediation.

As this statement and many recent judgments make clear, the court’s function should now primarily be to encourage resolution. Adjudication is the last resort; the fall-back mode when dispute resolution fails. Those brought up and trained for the boxing arena of the court need to go back to school to learn to think resolution from the first bell. The gloves are off the participants and onto the hands of the judges to be wielded against those protagonists who ignore, refuse or fail actively to participate in attempts to resolve their cases outside the court room.

After 5 years of the NHS Resolution Mediation Scheme, mediation as the primary form of dispute resolution is now firmly established in clinical negligence claims. This now encompass most cases brought against GPs as well as Trusts. There is no reason why mediation should not be similarly attractive to personal injury practitioners although they (and the insurance industry) have been much slower to adopt it as their preferred form of resolution.

Other forms of dispute resolution including settlement meetings and direct negotiations will always have their place but replacing judges and the adversarial approach with an independent neutral mediator, especially one with a specialist background in the field, has shown its worth in case after case.

So what have we learnt and how has mediation developed during the pandemic?

Well, with approaching 900 mediations under our belt and a resolution rate exceeding 80%, we can say for certain that our customers feel that mediation works.

What is more it works for all cases, of all values, and at all stages of the claim cycle. Most noteworthy is the fact that the resolution rate remains broadly consistent whenever in that cycle mediation is adopted. This though is with the caution that, in lower value cases, the later the mediation is held, costs issues definitely impedes resolution. The majority of mediations are now routinely held pre-issue and pre-CCMC.

Before 2020 online mediations were a rarity. Now they are here to stay – pandemic or no pandemic.  Parties have embraced and enjoyed the informality and flexibility of the process. Everyone is noticeably more relaxed. Posturing and adversarial phraseology simply do not work online and diminish the speaker. Claimants, who by and large are as well versed in Zoom as their lawyers, if not more so, enjoy the ease at which they can join in or elect not to. As one claimant wrote:

‘The opportunity to have mediation in the way that we did was absolutely the best thing that could have happened. The pressures of having to go somewhere for a long day, arrangements for the children, public transport, being in unfamiliar surroundings all take a toll… I definitely recommend it…’

And so should the parties’ lawyers.

Early resolution brings greater client satisfaction and finance partner’s approval as cash flow is accelerated. If you don’t embrace dispute resolution now the judges are ready and waiting to hand down a financial penalty.

Trust Mediation provides mediators for personal injury and clinical negligence cases. Its USP is that all its mediators have a specialist professional background in dealing with such cases.

If you would like to find out more about mediations in clinical negligence and personal injury cases do contact registrar@trustmediation.org.uk or sign up for one of our forthcoming training presentations or mediation clinics.

The Temple Perspective 

We support the use of mediation when the opportunity arises and even offer mediation incentives on our clinical negligence ATE policies. We continue to work closely with Trust Mediation and other entities to ensure that ADR is considered as a viable approach for law firms to achieve the best result for their clients. If you would like further information on how our ATE insurance cover and Disbursement Funding can benefit you and your client, please contact Peter Morgan at peter.morgan@temple-legal.co.uk or by telephone on 01483 514 800”