Mediating clinical claims: a mediator’s eye view
By Tony Allen
“I’m so glad I said what I did, and about the way I said it. I could show them how strongly I feel about the way I feel let down” (claim over non-union of a leg fracture)
“I thought the hospital representative was listening very carefully to what I said, and I really appreciated their apology” (a gynaecology claim)
“I wouldn’t have written this impact statement and read it out to you if the mediator hadn’t suggested that I could do so – it’s really important for me to say what an impact all this has had on our family life” (a cerebral palsy claim)
“I’m crying because I am so happy that we have been able to go through all the lessons learned by the Trust, which make us think that it is less likely that anything like that will happen again.” (an adolescent in-patient death)
This is the gist of four comments made by different claimants at recent mediations of clinical claims, not in any way untypical of many others I have heard over 20 years of mediating such cases. They underline for me the added value that the mediation process can unexpectedly offer.
The NHS Resolution Mediation Scheme developed from a year-long pilot, and has now been running for nearly three years. Panels of independent mediators are provided under contract by CEDR and Trust Mediation for clinical claims and by Costs ADR for disputed bills. Over 500 mediations have been conducted so far, with a settlement rate of around 75% or more. Just as importantly perhaps, a number of cases have not settled, demonstrating that mediation leaves the parties free not to settle. Skilled clinical negligence lawyers play an important role in advising about the prospects of success or failure at trial on issues of breach, causation and quantum.
What is striking is the way each mediation offers both claimants and NHS professionals the opportunity to reoccupy the centre ground of their case, should they wish to do so. Within the evidentially safe environment of a confidential and relatively informal conversation run by an experienced neutral mediator, all are free to say what they wish to each other and to explore both non-monetary and human needs besides medico-legal issues; hence the kind of comments above volunteered by claimants.
Not every claimant will want to say much, or even anything, though many do feel empowered at last to say what is important to them. Even those who are initially silent quite often add something and appreciate that opportunity. Some are reluctant to meet with the NHS team or with their treating clinician. But such meetings have sometimes led to a surprising degree of human resolution for claimants and families, NHS Trusts and healthcare professionals, especially when carefully managed by the mediator.
Recently I was able to convey the regrets and good wishes for the future from her former consultant to a claimant who did not want to meet him again across a table. She did not meet him that day, but she greatly appreciated his having come and the message he asked me to convey to her.
These possibilities rarely if ever arise at RTMs, when it is all too easy to be sucked into forensic debate without considering other aspects of clinical mishap. Do not underestimate the usefulness of a neutral to relieve legal teams of concerns with the process, nor what the neutral can do to settle lay parties into what is after all their dispute.
Formerly in practice as a solicitor, Tony Allen has been mediating clinical disputes with CEDR for over 20 years. His useful guide Mediating clinical claims was published by Bloomsbury Professional in 2018.