|When Mediation Works|
From July 2014 the NHSLA will offer a Mediation Service in all "suitable" cases involving a fatality or elderly care. This will be a without prejudice and confidential process. A number of mediators from a panel will be offered to the aggrieved party who will select one. It is expected that parties may well have lawyers in attendance but it is "not obligatory".
I have limited experience of mediation in clinical negligence cases and understand from at least one experienced mediator that clinical negligence mediation is not at all common. Of the five mediations I have participated in, I would say that four resulted in satisfactory outcomes. At two of those, I am sure that a similar outcome could have been achieved at a Joint Settlement Meeting (aka Round Table Meeting). The fifth failed, probably because of a poor choice of mediator. Nevertheless, I am convinced that there is potential for a much greater role for mediation in resolving clinical disputes.
There are obvious advantages to mediation. It can lead to an early resolution of a grievance and a potential or actual claim with considerable saving in costs. It can provide outcomes beyond financial recompense which may be of significant value to an aggrieved party. It can remove or alleviate the stresses on all parties and witnesses which litigation and trials can cause. A successful mediation will leave both sides feeling that a fair and just result has been achieved through an open process. In clinical negligence cases there may be a burning need for the patient or the bereaved to receive an explanation and acknowledgement. In litigation an adversarial approach and the rarity of trials, mean that opportunities for direct communication or acknowledgement are few and far between. In cases where a child has died, compensatory damages may be very low. The same may be true in some elderly care cases. The award of money by itself may leave parties with a sense that justice has not been done. Mediation may provide a better means of resolution than litigation in such cases, particularly if it involves a face to face acknowledgement that mistakes were made.
There are however risks to aggrieved parties inherent in the proposal. Parties should be fully aware of their rights to claim through the courts and their reasonable expectations from any potential claim, before they engage in mediation. In many cases they cannot know what those prospects are without seeing expert evidence and/or obtaining specialist legal advice. It is hoped that the NHSLA will bear in mind the likely costs involved in parties obtaining evidence and advice when they offer mediation and that they will be prepared to contemplate bearing those costs as part of a mediated resolution. Even if parties say that they are not raising a grievance or complaint because of "the money" they still ought to know what their potential entitlements are before agreeing to resolve their grievance at mediation. Thus the circumstances in which mediation is offered are important.
I also trust that the offer of mediation will not be misused as a stick to beat litigants with on costs. The refusal to engage in mediation can be a relevant factor when determining costs at the conclusion of litigation. The courts are keen to encourage the use of mediation. However, a party might reasonably feel that they need to investigate and take advice on their potential claims before committing to a mediation process. It would be unfortunate if the mediation service were used to seek a tactical advantage on costs in the litigation.
If an aggrieved party is to enter into mediation in full knowledge of their entitlements, then not only will they need to have had an opportunity to take medical and legal expert advice, but they will need to know the full facts relevant to their grievance. Thus, an offer of mediation must go hand in hand with candour on the part of all parties. Openness by the NHS about mistakes made and about evidence it has in its possession or control relevant to the case in question, is a necessary pre-requisite to any meaningful and fair mediation.
Under the scheme it appears to be up to the NHSLA to determine which cases are "suitable" for mediation and to control who is on the panel of mediators. I am sure that the panel of CEDR mediators would be truly independent, but equally see no reason why the NHSLA should not be open to agreeing to other mediators proposed by other parties. That may be necessary in some cases if patients or their families are to have full confidence in the mediation process.
It is worth noting that the existence of this scheme does not prevent an aggrieved party or the NHSLA from proposing mediation in other kinds of clinical negligence disputes, or even in fatal and elderly cases which the NHSLA does not deem to be suitable for mediation under this scheme.
It is not a fair criticism of this scheme to contend that it is simply a costs-saving measure. Provided that the scheme affords an opportunity to deliver fair and satisfactory outcomes for patients and healthcare providers alike, it would surely be an added benefit if it also reduces costs. Notwithstanding some reservations, it is welcome news that the NHSLA is willing to engage in alternative dispute resolution, albeit in a limited number of cases. If this scheme can be made to work then it might then be extended to a wider range of cases. Perhaps it might be adopted or copied by the MPS and MDU. This could be the beginning of a significant shift towards ADR in clinical negligence.