Mediating Clinical Negligence Claims

by Angela Black, Solicitor, Lead Mediator and Consensus Mediation Personal Injury & Clinical Negligence Panellist.

Sir Liam Donaldson's report, "Making Amends", is the latest in a string of attempts to bring mediation and other forms of dispute resolution into the management of clinical negligence claims.

This is against a backdrop of relative unenthusiasm amongst the legal community for the introduction of ADR into the claims process.

It is widely accepted that mediation provides the ideal forum for claimants and defendants to address issues which cannot be encompassed in the litigation process: an apology (in whatever form that might take); an explanation of what went wrong; confidentiality/publicity; assurances of changes in procedures; improvement of the patient/clinician relationship and so on.

Why, then, is it not used more widely for the resolution of clinical negligence disputes, whether complaints and/or claims?

It seems likely that the answer lies not in the mediation process itself, which is admirably suited to the nature of these claims, but to the route leading to it. There is a general perception that preparation for a mediation is similar to preparation for trial. It should not be: after all, there are no rules of evidence, no witnesses, no judgment.

Since the problems appear to arise along the way to mediation, perhaps the time has come to nominate a mediator at the outset of the claim and involve the mediator in a preliminary exploratory meeting with parties and their lawyers, with the objective of setting agreed (non-binding) guidelines for the management of the claim to mediation and/or issue of proceedings? Sir Liam Donaldson has proposed a preliminary process review where parties to a dispute and their lawyers could explore the suitability and timing of mediation or other forms of dispute resolution in a neutral non-binding forum to find the most suitable way forward for a particular case. Why not take this a step forward and introduce the Mediator at this early stage to bring an element of neutrality to the discussion (whether in caucus or at separate meetings) with the objective of achieving earlier mediation.

In Sir Liam Donaldson's words "Mediation is not a cheap alternative to litigation". But it could be … and, in any event, it's a brave lawyer who, these days, risks an adverse costs order by going to trial without an attempt at mediation first.

Click here to see Angela Black's Mediator Profile