1,100 and counting – the rise of dispute resolution

This article is part of issue #3 of our ATE newsletter, EvaluATE.

Paul Balen

Director

Trust Mediation

Dispute resolution, and the world of mediation in particular, has gone mainstream since the awarding of the contracts to mediate NHS Resolution personal injury and clinical negligence cases in December 2016. This transformation has been led by the Master of the Rolls, Sir Geoffrey Vos, who insists that those previously described as litigators are, in fact, dispute resolution lawyers, and that it is court, not dispute resolution, which is the last resort.

The recent decision of the Court of Appeal in Churchill makes it officially the case that a judge can order mediation and other forms of dispute resolution to take place and stay court proceedings over the heads of the parties and indeed can insist parties follow complaints schemes first if available and appropriate. The law has moved on from the decision in Halsey by allowing judges not just to encourage dispute resolution, but to insist on it.

Giving the judgment in the Court of Appeal, the Master of the Rolls ruled that a judge could order mediation but that whether dispute resolution should be ordered would be left to his discretion, taking into account the circumstances of the particular case. If a claim is not resolved by dispute resolution a party’s right to trial is preserved. He declined to define the discretion, but refused to order a stay in that particular case, considering that the defendant Council’s complaints policy which it wanted the court to order should be followed by the claimant might not be the most appropriate resolution process. Instead, he urged the parties to embrace mediation.

The days of settlement at the door of the court have been replaced by the “stocktake” at the end of the PAP, and woe betide any party who ignores a request to negotiate or mediate.

The MR is not alone. He is backed by judges who will now utilise their case management powers to stay cases where parties should be adopting dispute resolution, and penalising even successful parties in costs for not seriously attempting dispute resolution.

The world “Alternative “is no longer applicable. In judicial eyes, there is no alternative. In future, very few cases will merit the use of court and judicial time. 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, especially one with a specialist background in the field, has shown its worth in case after case. 

In the nearly 8 years of the NHSR Mediation Scheme, and through 1,100 mediations, we as mediators at TM have seen what works and what does not work in dispute resolution. We have evolved from just offering facilitative mediation, where the mediator facilitates and works with the parties to reach their own settlement to offering a whole toolbox of techniques, which we brand TM+. We now offer Evaluative Mediation – where the mediator, using his expertise as a specialist personal injury or clinical negligence lawyer, is asked by the parties to express a non-binding view on an issue or the issues in the case – through to standalone Neutral Evaluation (with or without mediation following) and arbitration through our sister company Trust Arbitration, where specialist arbitrators with judicial experience determine cases online within days, rather than the months if not years taken by the courts.

In days gone by, settlement meetings tended to take place in the corridor outside court. Over the last 8 years, we have noticed how the mediation date has moved from late in the litigation cycle in the early years of the Scheme. Today, 85% of our mediations are pre-CCMC and 54% pre-issue. This of course saves an enormous amount of time and costs, and also reduces stress and angst for the parties.

The resolution rate on the day or immediately after the mediation consistently approaches 80% no matter where in the cycle the mediation takes place, and this is almost certainly an underestimate, as we do not necessarily know the outcome of all cases after the end of the mediation.

Early pilots of the NHS mediation scheme concentrated on the lower value cases, but mediation has shown that it works at all levels, with 38% of our current workload covering claims in which over £750k is in issue, compared to 17% when the scheme started.

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. Claimants 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 the finance partner’s approval as cash flow is accelerated.

Mediation is not simply a tool to use where quantum is in issue. Liability-only issues are ideal for mediation, as is any case where there is more than one defendant, and it is not unusual for these to conclude with a final settlement with the parties using their expertise to find a sweet point for quantum settlement; thus demonstrating that you don’t need a trial bundle to settle a claim.

Talking, reality testing and informed discussion with a specialist mediator can produce results which the parties may not have anticipated, with huge savings in costs and great satisfaction to both parties – especially claimants. If mediation, whether facilitative or evaluative, is not thought to be the right dispute resolution tool for a particular case then standalone neutral evaluation may be the answer.

We have also seen the importance of encouraging parties to prepare position statements. The mere act of asking a party to sit down and think about resolution, rather than produce a scattergun adversarial tirade, often prompts a more realistic appraisal and a collaborative approach.

Dispute resolution has now proved its worth in clinical negligence cases, but has yet to take off in personal injury litigation. Despite the absence of a desire to explore extra judicial remedies, such as the apologies and lessons learnt which characterise many clinical negligence cases, there is no reason why dispute resolution involving a specialist neutral, whether in mediation, evaluation or arbitration, should not work equally as well in the personal injury arena.

Current judicial practice as exemplified by the Churchill judgment leaves little scope for any party to a potentially litigated or actually litigated claim to avoid dispute resolution instead of, or at least as a prelude to, involving the courts. Coupled with compulsory neutral evaluation in lower value clinical negligence claims and the provision for mediation fees in the new intermediate track, the dispute resolution toolbox, and mediation in particular, are here to stay.

This article was written for the DAS ATE newsletter, EvaluATE. The newsletter is our regular platform for providing insights to those in the PI and CN industries; you can read the rest of issue 3 at the link below. Don't forget to join our webinar on Wednesday 13th December to hear more from our contributors about the topics raised in this issue.

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