Mediating clinical claims – the new way

Probably the fastest growing sector in mediation practice in the last five years has been in clinical claims.  In 2014, NHS Resolution (then called the NHS Litigation Authority) piloted a scheme for mediating civil claims against NHS Trusts from a baseline of little more than zero.  The permanent scheme is now in its fourth year and has handled approaching 1,000 mediations with a settlement rate of over 75%.

Although much of mediation’s success in the clinical sector normally depends on face-to-face encounter between claimants and their families and NHS representatives to discuss allegedly negligent treatment, swift mobilisation of on-line technology looks likely become commonplace for clinical mediations, with little value lost and even conferring some additional benefits.

At my first on-line mediation of a clinical claim recently, the claimant and her husband remained comfortably ensconced in the familiar surroundings of their own home.  Solicitor and barrister for each party were in their home-as-temporary offices, and I was in mine between 50 and 100 miles from everyone else.  A “joint meeting” at which the claimant and partner felt able to convey tearfully what the impact of what went wrong had had on them was just like many others I have experienced face to face.  Private meetings in separate breakout rooms, with or without the mediator, was easy, making frank discussions possible.  As usual, risks were revisited and choices made as to settling or starting court proceedings, leading to settlement after about four hours.

Acting as an electronic host, by facilitating constructive communication in a confidential safe environment, was entirely congruent with my role as mediator when parties actually meet face to face or with me as conduit. Even the lighter moments which I value so much, in making discussions of often very painful subject-matter bearable, did their work well. 

It is demanding to be both mediator and technical support.  But the tension will ease as mediators and lawyers gain experience of this process.  And use of on-line communication may well survive the lockdown which has triggered its use.  When all this is over, clinicians and other NHS staff may well attend remotely for part at least of a mediation, when so often building time to attend has proved difficult in the past.

Fortunately in this difficult time, mediation generally seems well set up to grow. 

Tony is the author of Mediating Clinical Claims, Mediation Law and Civil Practice, The ADR Practice Guide

Written by Tony Allen

Tony Allen is a former long-standing Director of CEDR and a CEDR Solve mediator. He became a CEDR accredited mediator in 1996 and joined the CEDR Training Faculty a year later, initially dealing with training lawyers in representing clients at mediation and is now a lead member on CEDR's Mediator Skills Training Course. Tony has mediated a wide range of disputes involving personal injury and clinical negligence, public law, banking, construction, housing, partnership and professional indemnity, as well as general commercial claims. His work includes timelimited mediations through the Central London County Court scheme, and he has been involved in a number of major multiparty mediations including the Kenyan tribespeoples' claims against the Ministry of Defence and the Alder Hey retained organs mediations.

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