New High Court Rules on Mediation and Conciliation, under which a High Court Judge may adjourn legal proceedings to allow the parties to engage in alternative dispute resolution, may lead to an increase in the number of clinical negligence claims being settled through mediation, conciliation or other forms of ADR.
In practice mediation and conciliation have not traditionally been embraced in the context of clinical negligence disputes to the same degree as in other areas of law to date. However, the Rules, which came into effect on 16 November 2010 will allow a Judge to order parties to legal proceedings to consider ADR. If a party fails or refuses to participate without good reason this may be taken into account by the Court when subsequently awarding the costs of any action.
The process envisaged is simple and straightforward. If it considers it appropriate, a Court, of its own accord, or following application by one of the parties in a suitable case, may direct the adjournment of proceedings generally, or of any issue in particular, and invite the parties to use ADR to determine the proceedings, or issue. Alternatively, where the parties are happy to consent to ADR, the Court will refer the proceedings to ADR and adjourn the proceedings to allow the procedure to take place.
A mediator’s role is to encourage and facilitate the parties to reach agreement and not to impose a resolution, judgment or determination. Either party can, at any time, go back to the Court for a determination. The process is confidential, without prejudice to any subsequent legal proceedings, and non-binding unless a concluded settlement agreement is reached. Mediation will usually result in the dispute being settled more quickly and cheaply than the adversarial and costly court process.
It is widely accepted that mediation is a particularly appropriate vehicle for the swift and amicable resolution of clinical negligence actions, as both parties can freely express their feelings about the impact of the alleged incident, and hear an acknowledgment of that impact, in a private, confidential and without prejudice forum. Claims which are settled at Trial or just before often result in the Plaintiff feeling as though s/he has not had the opportunity to air his/her grievance, through mediation this can be minimized. The practitioner is also afforded an opportunity to apologise without admitting liability and avoid risking potential reputational damage on foot of the media coverage which frequently accompanies a Trial.
With the introduction of the new Rules, the impetus is now on all parties, and their advisors, to be aware of the fundamentals of mediation, conciliation and ADR generally, as it is now increasingly likely that a party who is unwilling to partake in the voluntary process, without good reason, may be penalised with a costs sanction.