Mediation is often described to injured claimants and their families as a gentler alternative to litigation. The emphasis is often on the process rather than tangible, financial results, with the implication (particularly for claimant lawyers) that mediation is a kind of talking therapy for weaker, lower value claims or in cases where compensation is of lesser or secondary importance to the claimant. It is, therefore, understandable, if not entirely appropriate, that claimant lawyers might hesitate to suggest or recommend mediation to their clients, particularly those with stronger or higher value claims.

As a litigator, with recent experience of securing excellent settlements for several clients at mediation, I believe that mediation can be a valuable tool in the claimant lawyer’s toolbox, which allows us confidently to offer a full range of settlement and resolution options for our clients. Ironically, the key to successful mediation is in preparing early to fight the client’s case and then seizing the opportunities that mediation offers, with a litigator’s mindset.

What is mediation?

Mediation is a form of alternative dispute resolution (ADR) in which a neutral or independent mediator helps the parties in a legal claim to try to reach an agreed settlement of the case.

A mediation normally brings both/all parties and their legal advisors together in a neutral place (or online) with the mediator, who moves between the parties to facilitate a meaningful negotiation process. In medical negligence claims, members of the injured person’s family and clinicians from the defendant NHS trust or GP surgery may also be invited to attend. Mediations normally take place over the course of several hours or a day, during which the mediator helps the parties reach an agreed settlement. Each team has privacy from the other, so that they can talk privately to their client or lawyer, and to the mediator, and consider settlement offers and other matters that might arise during the mediation.

The mediation process is less formal and more flexible than court proceedings, allowing time and space for patients, if they wish, to express their feelings and concerns to the healthcare provider or the NHS defence team, NHS Resolution, either face-to-face in a meeting, or via their own lawyer who is there to represent them and provide advice and support, or via the mediator who moves between the teams encouraging better understanding and resolution. The mediator’s role is to help the parties reach agreement, which may involve some reality checking of fixed positions or assumptions, but, unlike a trial judge, they cannot adjudicate or force any particular settlement on the parties.

Is mediation compulsory in High Court medical negligence claims?

No. Mediation is not compulsory in High Court medical negligence claims, but the court may require any party to provide an explanation if they have refused a request to mediate or take part in another form of ADR, such as a round table meeting (RTM).

Where mediation may be in their client’s interests, either now or at a later stage in the claim, it is important for even the most committed litigators amongst us to recognise and prepare for that possibility.

Pro-active preparation for mediation

Pro-active preparation for mediation is essentially the same as good management of our client’s case. It ensures that we can not only respond to mediation invitations and challenges by NHS Resolution but also, and ideally, act first. This means gathering evidence early, putting the defendant on notice about the claim early, and having a clear understanding of the strengths and weaknesses of the client’s case, as well as its valuation.

This kind of pro-active approach involves considering all pathways to resolution and identifying those cases which might be suitable for mediation. Where mediation might be appropriate, this involves discussing the process and its potential benefits in advance with the client and preparing the client for that possibility, so that if the case is suitable, the client is equipped and prepared to request or respond to a request for mediation.

Mediating medical negligence claims against NHS Resolution

In our experience, NHS Resolution may sometimes be open to mediation even in cases where they have taken a defensive stance throughout the litigation. In two recent medical negligence cases, we achieved good settlements for our clients at mediation, despite NHS Resolution’s firmly stated denial of liability. This raises the question of how the supposedly ‘softer’ process of ADR/mediation could lead to good value compensation settlements in cases where NHS Resolution had denied liability on behalf of their client NHS trust, indicating an intention to defend these cases via the adversarial process which they say they are trying to discourage.

As we have previously commented, despite NHS Resolution’s repeated suggestion that claimant lawyers prolong the litigation process, in our experience, most of the cases which we ultimately settle successfully with substantial compensation for our clients have had to be pursued through the litigation process owing to NHS Resolution’s defensive response to our client’s letter of claim. However, NHS Resolution’s current strategic focus is on keeping injured patients away from claimant lawyers and out of court, which depends on establishing their own track record of settlements achieved via ADR, including mediation.

NHS Resolution’s annual report highlights the NHS defence organisation’s promotion of the use of mediation in appropriate claims, with mediation now considered as a routine option for resolving medical negligence claims. Their statistics show that from 2016 to 31 March 2023, a total number of 1,836 claims were mediated and 72% of the 229 claims which they mediated in 2022/2023 settled on the mediation day or within 28 days of the mediation. It may be that NHS Resolution’s willingness to settle even strongly defended claims at mediation is influenced by their interest in demonstrating a shift in the statistics from litigated to mediated settlements.

Whatever the motivation behind NHS Resolution’s willingness to accept our invitation to mediate these cases, a successful outcome was achieved for our clients. This saved time and cost by avoiding hurdles, such as the need for a contested limitation hearing in one case, and the evidential and procedural steps leading to a pre-trial RTM (when settlement often occurs), whilst also allowing us to test NHS Resolution’s resolve in defending the claim and achieve the right outcome for our client.

Which cases are suited to mediation?

In the current litigation climate, as claimant lawyers we should avoid generalisations and stereotypes when considering whether a case is suitable for mediation. First and foremost, mediation of the case must be in the client’s interests.

Mediation should not be used as a last resort to try to settle an unwinnable case towards the end of the litigation process. Lost causes should never be allowed to reach that stage, for the sake of the client. However, mediation is well suited to clients (with justifiable claims) for whom the litigation process is having a detrimental impact on their health and well-being, which could be eased by a quicker settlement via the mediation process.

Mediation is not a soft touch. Claimants should not be left without experienced and skilled legal representation by claimant clinical negligence specialists at mediations where NHS Resolution will be representing the (fully prepared) defendants. Representing a client at mediation has serious implications for the immediate settlement outcome or the onward litigation if settlement cannot be reached. It requires a delicate balance between creating an environment of trust in which the client’s needs can be discussed whilst protecting their interests, ideally achieving a mutually agreeable settlement (rather than compromise). This depends on pro-active preparation, excellent negotiating skills and careful, supportive care of the client as a well informed and willing participant in the process. Mediated settlements are binding on the client.

In some cases, mediation may not be a suitable way to achieve settlement. This needs special consideration where a child or other vulnerable protected party needs the protection and rigour of a full investigation and expertly advised settlement which will need to be justified in its detail and approved by the court.

Mediation is ideal for, but not limited to, claims where alongside the pleaded case there may be other matters of utmost importance to the injured patient or their family which will not be addressed by the formal claims process. For example, in one of our recent settlements, it was of utmost importance to our client to achieve redress for a functional neurological disorder (FND) misdiagnosis which he believed had influenced the assumptions of his doctors, leading to a delay in the diagnosis and treatment of spinal cord compression from a spinal cyst. The client’s case did not turn on the FND diagnosis, but on the clear negligence in the failure to recognise signs of an evolving spinal cord compression, but this could not adequately address his frustration at the impact of the FND diagnosis on the care he had received. The broader remit of the mediation process allowed him to express his concerns and hear them acknowledged, and have his medical records amended accordingly via a letter stating that the FND diagnosis was wrong, whilst also securing the compensation settlement that he deserved for the injury that was caused by the negligently delayed diagnosis and treatment which formed the basis for the clinical negligence claim.

In another recent case, our client had felt shamed by the personal nature of her injuries after her traumatic forceps tear birth injury and struggled to cope with her symptoms for many years before finally asking for help. The mediation provided acknowledgement of her suffering alongside a compensation settlement, which provided closure in a far more sensitive way than a contested limitation hearing exploring her state of mind during those difficult years ever could have done.