What has been the general position to mediation in Ireland?
There is growing momentum in legal circles relating to the attractions of mediation as a healthy alternative to litigation. With the HSE having paid out almost €80 million in legal fees over the past three years1 and with 2623 High Court personal injury cases being settled before trial in 20072, it makes sense that this less costly option should be utilised.
Despite the introduction of section 15 of the Civil Liability and Courts Act 2004, there has only been a handful of medical negligence claims that have been brought to mediation. The experience so far has been that the success of mediation will depend on the willingness of the parties to engage in the process. The mediated cases to date have brought the advantages of privacy, choice of mediator and choice of setting, while achieving a result that both parties are satisfied with, while also avoiding the often stressful environment of the courts. In terms of the timeframe involved, the mediations that have occurred so far in Ireland have taken far shorter time than if the claims had proceeded to full trial. Finally, the process gives families involved the opportunity to engage with both the practitioners involved and expert witnesses face to face in a more comfortable setting, which creates the opportunity for a more open and rewarding resolution between both parties.
To what extent is mediation a voluntary process in the context of a personal injuries case in Ireland?
If mediation is to become an integral part of the civil justice system, it must be approached on a voluntary basis.3
Section 15 of the Civil Liability and Courts Act 2004 provides that mediation can only be initiated at the request of one of the parties to the action and not by the Court. A Court can, at any time before trial and upon the request of any party to a personal injuries action, compel parties to a dispute to engage in a mediation conference, provided that the court is satisfied that such a meeting would assist in reaching a settlement. The Act further provides a guarantee of confidentiality essential to the mediation process.
Furthermore, where a party does not properly adhere to an order under section 15, the court can impose a costs sanction, in that the court has the power to direct that party to pay for some or all of the costs of the action. There have been mixed views in relation to the effectiveness of such provisions.
The UK case of Halsey v Milton Keynes General Trust4 involved a clinical negligence claim in which the claimant sued a health authority for causing the death of her husband.
The Court clarified the factors which it will take into account in deciding whether a party's refusal to mediate is unreasonable and, as such, the circumstances in which a successful party could be penalised as to costs for unreasonably refusing Alternative Dispute Resolution (ADR).
The Court listed six factors which may be relevant to the question of whether a party has unreasonably refused ADR: the nature of the dispute, the merits of the case, the extent to which other settlement methods have been attempted, whether the costs of mediation would have been disproportionately high, whether any delay in setting up and attending mediation would have been prejudicial, whether mediation had a reasonable prospect of success.
Thus the situation in Ireland is different to that in the UK. In Ireland, provided one party has suggested it, under Section 15 of the Civil Liability and Courts Act the court has discretion to compel mediation efforts to the effect that if such efforts are not made, costs will be imposed. In the UK, conversely, the court will not compel it and will only impose costs in the advent that it is shown by the opposing party that the other party unreasonably refused to engage in mediation. In Halsey, the court held that
"If the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it".
Does the opportunity to utilise this process of resolution exist within the context of medical professional regulation?
The Medical Practitioners Act 2007 introduces a new power which allows the Medical Council to resolve conflicts by mediation. This is aimed at minor disputes. Under the Act, no attempt to mediate can be made without the consent of the parties involved and where the medical practitioner agrees to mediation, this cannot be construed as an admission of any allegation. Furthermore, the Act states that any communications made during the mediation are without prejudice and the resolution of a complaint by mediation cannot include the payment of any financial compensation.
A similar provision exists in the Health and Social Care Professionals Act 2005. In this case, no attempt may be made to resolve a complaint by mediation without the consent of the complainant and the registrant against whom the complaint was made.
What are the advantages to Mediation?
Depending on the suitability of the case involved, mediation can often furnish more satisfactory results to the parties than the outcomes of litigation.
- Mediation is advertised as offering many advantages, for example:
- It is flexible to the needs of the parties,
- It is much faster than more formal processes,
- It is a confidential process,
- There is no danger of publicity, and
- Information learnt through the process is without prejudice - it cannot subsequently be used in any litigation, tribunal, hearing, grievance procedure or similar process.
Specifically in terms of healthcare, patients often want a wider range of remedies than litigation is designed to provide. Some victims are more interested in an explanation or apology than financial compensation5. These people can feel forced into litigation because they think is no other way of resolving the issues. Mediation can allow parties to a medical dispute determine the remedies suited to their individual needs.
Devlin v The National Maternity Hospital6 is an example of a case which might have benefited from mediation. There the Supreme Court decided the plaintiff was not entitled to damages from the defendant hospital for nervous shock over the retention of some of the organs of his stillborn daughter. Denham J stressed that its decision in the proceedings was "a decision of law" and "should not be read as an endorsement" of past hospital practice. The Supreme Court noted that grief or sorrow was not a basis to recover damages and upheld the High Court's decision that the plaintiff had not proven any legally recognisable injury or loss as a result of the organ retention.
The Devlin case mirrors the facts which arose at the Alder Hey Children's Hospitals in Liverpool. The mediation of this dispute by the Centre for Effective Dispute Resolution resulted in the families receiving an apology from the hospital, compensation and a memorial for the children. Thus, had Devlin been mediated, the plaintiffs might have been afforded redress which was not available to them through litigation.7
Mediation allows for imagination in the fashioning of suitable redress. In England and Wales, a number of such outcomes have emerged from mediations of medical disputes, for example, a fast-track IVF was agreed for a woman who lost her child as a result of a ruptured Caesarean scar, where her ability to conceive was said to have been compromised8.
What factors should an injured party or defendant consider before proposing ADR?
When selecting a dispute resolution process, the parties' choice of process might be influenced by the following:
- The need/desire for confidentiality
- Whether a precedent is required
- Where a reputation is at risk
- The costs involved
- The time the process may take
- The importance of preserving relationships
- The desire for non-legal solutions
- The desire for an opinion by a third party
- The complexity of the issue
- The need for a final and binding determination
- The number of parties involved.