What we have learned from 7 years of mediation

This article is part of issue #4 of our ATE newsletter, EvaluATE.

Paul Balen

Director

Trust Mediation

Trust Mediation has now mediated close to 1,200 cases under the NHS Resolution Mediation Scheme for personal injury and clinical negligence cases since 2017. In those 7 years we have learnt a lot about what works and what doesn’t work; here are a few reflections.

What cases are suitable for mediation?

All cases! In recent years over 40% of our mediations have involved claims with a value claimed to exceed £750k.  Experience has shown that open and flexible discussions under the protection of mediation privilege can successfully resolve not just quantum-only cases, but also those where breach, causation and even contributory negligence can be explored; issues narrowed, and risk evaluated.

At what stage in the process is mediation most effective?

Now 70% of our cases are pre-CCMC, the overwhelming majority of those being pre-issue. Whenever held, the mediation resolution rate on the day or immediately thereafter sticks at around 80%. This itself is probably an underestimate, as often parties do not let us mediators know what actually happens after the mediation has concluded.

Why can’t we just have a joint settlement meeting?

By putting the claimant at the centre of the process, the NHS Resolution mediation scheme empowers the claimant and allows for exploration of whatever issues the claimant seeks to help him/her to come to terms with what happened.

An opening session in a mediation can involve the claimant as much or as little as he or she requires. It can deal with extra-judicial matters such as apologies and lessons learnt in a far more relaxed and collaborative manner than is possible at most settlement meetings, which tend to an adversarial discussion between lawyers, sometimes with the claimant confined to the proverbial broom cupboard.

Even in a dispute being hard fought at the adversarial level, the introduction of an independent neutral, encouraging the parties to work out how best the matter can be resolved, invariably produces dividends for the parties and most importantly satisfaction and at least a degree of closure for the claimant.

What is a position statement?

The importance of the role of position statements is increasingly being recognised by those more experienced in the use of mediations.

A position statement is not a pleading. Think of it as a cross between a case summary and a plan as to how resolution, either of individual issues or the whole case, can be achieved. Our experience is that the mere fact of looking at your client’s case in this way should prompt your and your opponent’s thoughts on resolution/settlement and increase the likelihood of that being achieved.

Does everyone have to meet?

Our experience is that, unlike other kinds of mediation, “business” is seldom conducted at opening sessions. Assuming adequate preparation the parties should already know the issues and their respective positions. Although no claimant can be forced to participate do encourage there to be a session at the start of the day when everyone present can introduce themselves and explain their roles.

Like everything else in mediation (except for confidentiality) such a session is optional but again simply identifying who the participants are represents a human touch vastly different from the formalities of the adversarial court process.

What does the future hold for mediation?

Particularly in clinical negligence claims the empowerment of both parties to make decisions dispositive of the issues arising is in itself an important part of the resolution process, whether in the eyes of the claimant or the medical defendant. Both seek resolution and closure. The fact that parties volunteer to mediate, albeit these days under a degree of judicial pressure, is important to the healing/resolution process.

Mediation can also sit well with other forms of dispute resolution such as neutral evaluation. Evaluation can easily be incorporated into mediation process if the parties agree.

The pre-action procedure naturally lends itself to a stocktake at the end prior to issue of court proceedings. Due to large fees and delays, court has become the last resort, rather than the first; because of this, an even greater number of mediations could and should be held at the stock-taking stage. Lawyers should be solution providers rather than generals in battle.

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 4 at the link below. Don't forget to join our webinar on Tuesday 23rd April to hear more from our contributors about the topics raised in this issue.

Read Issue #4 of EvaluATE Join our webinar