Mediation in medical negligence claims

Alternative dispute resolution or ADR refers to methods for resolving or settling disputes other than going to court.

ADR is a very wide term. It can describe complaints procedures or ombudsman schemes which aim to resolve disputes so that court proceedings are not needed at all, but the courts also strongly encourage the parties in court proceedings to use ADR to try to attempt to resolve or settle their claim before bringing it to the court to decide.

Examples of ADR in medical negligence claims include:

• formal joint settlement meetings (JSM) or round table meetings (RTM) at which the legal teams for the injured claimant and NHS Resolution meet to negotiate settlement;
• attempts to negotiate settlement by making formal ‘offers to settle’;
• early neutral evaluation, in which an independent arbitrator gives their (non-binding) assessment of the strengths and weaknesses of each side’s case;
• mediation, in which an independent mediator facilitates an agreed settlement between the parties to a claim.

Mediation is a form of alternative dispute resolution (ADR) in which an independent mediator helps the parties reach an agreed settlement of a claim or dispute.

At a medical negligence mediation, the mediator aims to facilitate a settlement between the injured patient (who is represented by their legal advisor) and NHS Resolution (the NHS legal defence team representing the NHS healthcare provider).

In medical negligence claims against two or more healthcare providers who are separately represented, the mediator may also work with those parties to help them reach agreement between themselves, such as where liability for the patient’s injury is to be split between an NHS trust and a GP.

The mediator’s role is to help the parties reach a settlement agreement. If a mediated settlement is agreed, it is binding on all the parties. As the mediator moves between the parties, they are in a better position to understand each party’s position, and also to reality check where their assumptions or fixed ideas are unhelpful. However, unlike a trial judge, a mediator cannot adjudicate or force a settlement on the parties.

A medical negligence mediation usually takes place in a neutral place with a central meeting room but with space and privacy for each party to talk privately with their legal team and/or with the mediator as they move between the parties. If preferred, the mediation can be held online, with similar arrangements for private and combined meetings, as needed.

The injured claimant is supported and represented at the mediation by their legal advisors and can also be accompanied by close family members for additional support. The defendant healthcare organisation will usually be represented by the NHS’s defence team, NHS Resolution. Where it might be helpful, clinicians from the NHS trust or GP surgery may also be invited to attend.

The mediator will have been fully briefed about the claimant’s needs and the circumstances of their case, and will take those needs into account when deciding the format for the day and how to help the parties reach an agreed settlement. Medical negligence mediations are less formal and more flexible than court proceedings. The privacy and informality of a mediation allows time and space for injured claimants to express their feelings and concerns to the attending clinician or to NHS Resolution, either face-to-face across the table from each other, or via their own lawyer who is representing them, or via the mediator who moves between the parties facilitating better understanding and resolution.

Successful mediations usually result in compensation settlements, which bring the medical negligence proceedings to an end. Mediated settlements can also provide additional outcomes for the claimant, such as an apology or explanation or a contractual agreement to provide or pay for other services, such as rehabilitation.

There are many reasons why we recommend medical negligence mediation to our injured clients.

• Mediation allows a settlement to be reached in a non-adversarial process, removing much of the worry, uncertainty and ‘litigation risk’ associated with a trial.
• Our injured clients are fully supported at mediation by our experienced legal team, but feel more involved in a mediation than they would do at formal settlement meetings or at trial.
• Mediation allows our injured clients the opportunity to express their feelings about what has happened to them to their clinicians or to NHS Resolution (either directly or via their lawyer or the mediator), and to have their feelings heard and acknowledged. In some cases, they find it helpful to hear how the healthcare system, NHS trust, GP surgery or ambulance service has learned from the incident and is taking steps to reduce the risk of similar harm being caused to other patients.
• Mediation can enable the claim to be settled more quickly than by going to trial.
• Mediation can lead to full compensation settlements but also settlement arrangements that are more flexible than the available outcomes from a court judgment.
• A professional mediator can often reopen and facilitate constructive settlement negotiations where previous communication between the parties has become entrenched or broken down.
• The settlement discussions at a mediation remain confidential.

Many of these benefits can also be provided by other forms of ADR.

Mediation is now commonly accepted as a helpful form of alternative dispute resolution (ADR) for a wide range of medical negligence claims. Where it is in our client’s best interests to recommend exploring settlement at a medical negligence mediation, we prepare the claim fully to ensure that we can make or respond to a request for mediation at the earliest opportunity.

We are more likely to recommend mediation in medical negligence cases where our injured client is an adult with full mental capacity who would benefit from having their claim settled at an early stage in a less formal and adversarial environment than a courtroom trial. Mediation is also ideal for claims where, in addition to financial compensation, the injured patient or their family want to express their feelings about concerns which cannot be resolved by the litigation process.

Some medical negligence cases may not be suitable for settlement by mediation. Settlements involving catastrophic injury to children or vulnerable adults must be based on rigorous investigation and expert preparation by experienced specialist solicitors to ensure that they can be justified in every detail when the court is asked to approve the settlement. In most of these cases, however, we are able to achieve settlements using another form of ADR, such as by negotiation with NHS Resolution at a lawyers’ round table meeting (RTM).

Yes, recent decisions by the courts have demonstrated that where a party to court proceedings refuses to engage in alternative dispute resolution (ADR), the court may:

• stay (adjourn) the proceedings and order that a mediation takes place;
• impose costs penalties on the party that has refused to engage in ADR, even where that party ultimately wins their case at trial.

We strongly recommend that injured patients and their families seek independent legal advice immediately if they are contacted by NHS Resolution.

Injured patients and their families should not engage in negotiations or attend mediations (where NHS Resolution will be representing the fully prepared defendants) without legal representation by skilled and experienced claimant clinical negligence lawyers.

Our clients are always advised, represented and supported throughout the mediation process by our experienced solicitors, after a full investigation of their claim.

Settlements that are agreed at mediation are binding.

Mediation provides a less formal and more flexible approach to resolving medical negligence claims but our primary aim at mediation is to achieve the best compensation settlement for our client.

Mediation can provide an opportunity for more innovative settlement arrangements than traditional litigation usually allows, but in serious injury medical negligence claims, such arrangements should not be a substitute for the full compensation that our client deserves.

Our experienced solicitors have achieved high value, full compensation settlements at mediations for many of our clients, including multi-million-pound settlements in high value claims.

As with all medical negligence settlements, the compensation that an injured claimant receives at mediation will depend on the circumstances and value of their claim, and the mediation experience and skill of their solicitor. To achieve the best settlement at mediation it is vital that the injured person’s claim has been properly investigated and prepared by a claimant-specialist solicitor, who is experienced in representing and negotiating on behalf of severely injured clients at mediation.

We strongly advise that injured patients and their families do not engage in mediation or negotiations with NHS Resolution without independent legal representation from an experienced, claimant-specialist medical negligence solicitor.