Mediation in Clinical Negligence

In terms of the law, mediation is a means of resolving disputes. In mediation sessions, discussions between the two opposing parties is facilitated by a third party, also known as a mediator.

The mediator is neutral, is representative of neither of the opposing parties and should not offer legal advice. A skilled mediator displays good communication skills, good speaking and listening skills and aims to keep the parties focused on the issues at hand.

Clinical negligence mediation

Over the past decade or so, mediation has been used in the UK for the resolution of clinical negligence cases. In clinical negligence claims, for mediation to proceed, both parties must consent. Participation is entirely voluntary and may be stopped at any time. What goes on during the mediation is private and confidential. The aim is for the opposing parties to reach a satisfactory agreement. If terms are agreed upon, they are made legally binding. However, if mutually agreeable terms cannot be found, the case may be taken forward for litigation, in which a decision will be made by the judge and imposed on both parties.

The benefits of medical malpractice mediation

For some people, mediation can be preferable to a court case, particularly in terms of speed and cost savings. For many, it is also less stressful. To date, mediation on clinical negligence has been used in a wide variety of cases, and most negligence cases are suitable for mediation to occur.

Statistics show that the rate of successful mediations are over 90% and a small NHS Pilot scheme supports these findings: of the 12 cases mediated during the pilot, 11 were resolved with monetary and non-monetary outcomes. The 12th case ended as a consequence of withdrawal, yet with a ‘valuable non-monetary outcome for the claimant’.2

Mediation is recognised by the courts as a viable means of, ‘alternative dispute resolution’. Its success is reflected in the reduction of court trials and in the rise in the total number of mediations taking place.3

Deciding on mediation in medical negligence cases

There are several reasons why people may be hesitant to use mediation: a mistrust of the process, lawyers perceiving the mediation process as inherently flawed and the fact that wronged parties really want to have their day in court.4 For these reasons, parties should not be forced to mediation. A report in the Law Society Gazette is clear that for now, mediation must remain a voluntary process. For if people are compelled to do something that they are not happy to do, they will not participate, resulting in an ‘expensive nuisance’.5 It is the case therefore, that mediation is not right for everyone.

Osbornes Law: Finding out if mediation is a suitable option for you

To find out more about mediation in clinical negligence cases and whether it is something that may work in your case, please contact one of the specialist clinical negligence team at Osbornes Law. We will be glad to hear from you and you will be glad that you got in touch.

Our Promise to You

· We will review your potential claim by advising you on the NHS complaints procedure or other alternative procedure if your case does not relate to NHS care and treatment.

· We will not charge a fee for our time in reviewing your case.

· We can assist you with any issues that you may have regarding the complaints procedure or that you encounter in obtaining copies of your medical records.

· We will advise you of the course of action in respect of your case.

For a further discussion regarding your situation and whether mediation may be the right solution for you, call Stephanie Prior on 020 7485 8811 or fill in our online enquiry form.