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Mediation for clinical negligence cases – still a hot topic

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

(Estimated reading time: 1 minutes, 31 seconds)

By David Pipkin – Director, Underwriting Division and observations from Terry Renouf of Renouf Mediation.

The NHSR annual report records that the number of clinical negligence mediations increased by 110% (380) in the last year and that figure is likely to continue to increase significantly in coming years. This is certainly borne out by our own ATE insurance data.

  • Image of Terry Renouf

    Whatever your personal view of the mediation process, and especially the NHS scheme, bear in mind the sobering statistic that the percentage of trial losses is increasing – 69% last year. Contrast that with the fact that 74% of mediated cases settled.

  • As underwriters, that data is compelling but we do not overlook the possibility of behaviour changes and the risk of cases being under-settled if, for example, mediation occurs too early before all necessary causation and quantum investigations are completed.
  • We are receiving more examples of single or multiple issues of breach and causation being resolved by mediation at earlier stages, which all goes to reduce risk.
  • I firmly believe mediation should be on your procedural menu for all clinical negligence cases and there should be flexibility as to the timing.
  • Our policies cover the cost of mediator’s fees where appropriate. It will not be for all cases and I am not an advocate of compulsory mediation which is being suggested should occur in Scotland.

At Temple we are interested in hearing your experience of mediation, both good and bad. This will help us build up a better working knowledge of the NHSR process of mediation. This information may play a part in reducing the underwriting risk which may well in turn lead to lower premiums. I would encourage you to email me your experiences to redacting any identifying features of a case. I will then attempt to summarise any trends of behaviour to share with you all in future.

You may also want to read about

David Pipkin

Non-Executive Director
Read articles by David Pipkin

David Pipkin

David was Director of Temple’s Underwriting Division for 14 years during which time he supported Temple’s coverholders with his exceptional knowledge, expert guidance and friendly countenance.

He is now a Non-Executive member of the board supporting the strategic direction of the company and attending key events and meetings with our customers.

David has spent over 40 years as a Legal Executive specialising in personal injury litigation. Initially, he was a claimant litigator pursuing leading industrial accident and disease cases.

As an Associate at Davies Arnold Cooper for over a decade he managed a team of lawyers and acted for defendants in personal injury and general insurance litigation. In this role, he became involved in the early development of the ATE market, assisting the ABI in their involvement in the Court of Appeal test cases such as Callery v Gray.

As the London representative for FOIL he was involved in the liability insurers’ approach to ATE and worked with the government and judiciary in several key consultations. He was a member of the CILEX National Council for over 15 years and was CILEX President in 1995/6.


Read articles by David Pipkin