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Mediating Personal Injury and Clinical Negligence claims

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

By Paul Balen Mediator Director, Trust Mediation Ltd

(Estimated reading time: 3 minutes, 15 seconds)

Recent developments in mediation have included the Court’s exhortations to mediate, the adoption of virtual mediations and successful use of video platforms (encouraging a constructive rather than adversarial approach).

Since qualifying as a Mediator in 2004, it has been fascinating to see lawyers and parties on both sides attune themselves to the concept of resolution, sometimes extremely successfully, sometimes simply not at all.

My firm has now conducted over 550 clinical negligence mediations under the NHS Resolution Scheme. Anecdotal experience has shown that, when there is an untoward medical result, the patient’s shopping list of requirements or those of his/her relatives are far wider than a judge could possibly order – or that other methods of alternative dispute resolution (ADR) could provide. This is where mediation comes into its own.

Whilst personal injury practitioners have been slower to embrace ADR and mediation in particular, a combination of the Court’s exhortations in recent cases* – for example, disqualifying costs incurred by parties who refuse to respond to, or participate in, ADR – and the lack of court time caused by the current pandemic. This means that – in every case – ADR in general, and mediation in particular, should now be considered as the principal way of resolving claims, should negotiations between the parties directly not achieve this. Early resolution helps improves cash flow for both litigants
and lawyers alike.

Virtual success
Although remote mediations had been carried out before the current lock-down there is no doubt that the adoption of virtual mediations and particularly the use of video platforms has been extremely successful. Platforms such as Zoom with its waiting room and breakout rooms smoothly mirror the face-to-face experience.

For the claimant the experience of participating from home, often using a system they themselves use for family quizzes and the like, undoubtedly leads to a much more relaxed atmosphere. For lawyers there seems little doubt that remote working promotes a constructive rather than adversarial or ‘posturing’ approach. The time saved in travelling enhances the flexibility of the process and reduces stress as well as cost.

A remarkable shift in the timing of mediations
Now over 60% of mediations are conducted pre CCMC and most of these pre-issue. The cost saving must be considerable and the litigation anxiety (of both parties) must be lessened as the resolution timetable shortens. The resolution rate has remained constantly high at around 80% and does not change, no matter when in the process the mediation takes place. This alone should encourage even more cases to be mediated earlier. Mediation can take place whenever both parties are in a position to advise their clients responsibly.

The exchange of information is often key to resolution and is facilitated by the privilege attached to mediation. Documentation need not be created to trial standard. A thoughtful, well drafted position statement can be very helpful to the process. This can be exchanged between the parties or provided to the Mediator on a confidential basis.

Much work still to be done
Those few cases where the mediation is totally abortive are generally the result of the parties not planning for resolution earlier enough in the process – leaving one or both parties incapable on the day of being able to responsibly advise their clients on how the case can be resolved.

Because the claimant profession is spread so widely, apart from a few noticeable examples, claimant fee earners even now have little experience of mediation. There is much to be done to enable claimant fee earners gain the same experience that many defence panel firms’ fee earners now have.

*DSN v Blackpool Football Club [2020] EWHC 670, BXB v Watch Tower etc [2020] EWHC 656 and Wales v CBRE [2020] EWHC 1050.

Trust Mediation alone has mediated well over 160 different claimant firms and runs free training sessions and pre-mediation trial runs on a virtual platform. Do please contact us for more information via email to paul.balen@trustmediation.org.uk or calling 07767 673200. Find out more at www.trustmediation.org.uk

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