I have had lawyers say to me: “We don’t need to mediate; we know how to negotiate.” This seems like a more extreme version of “We can settle cases ourselves at Joint Settlement Meeting (JSM) and mediation doesn’t add anything.” It misses a major option for negotiators.
Increasing the options
Some cases can be resolved satisfactorily by direct bi-party negotiation and some at JSM. Mediation is an additional option which has the benefit of changing the dynamic in the discussion by including a neutral third party and arranging for a specific process to be used for the negotiation. Skilled negotiators increase their options by engaging a mediator thereby providing better prospects of a fair and proper settlement for their clients. There may be an impression that in some way the process undermines the role of the parties’ lawyers in resolving cases; in fact, it should enhance it.
Mediation increases the scope and prospects for settlement, providing a more dynamic environment for negotiation. It gives an opportunity, not really available in a JSM, for parties themselves to play an involved and significant part in finding the resolution that they need.
Claimants in clinical negligence cases are, hopefully, one-time users of the civil justice system. This may also be true for some of the individuals involved on behalf of the defendants, whether they are Trust representatives, clinicians, or involved in some other capacity. People come to potential litigation with many anxieties about the case, the unfamiliar processes and the way in which they will be expected to play their role. Difficult, important conversations can be facilitated and chaired by a mediator in ways not possible at a JSM. Conversations like these lead to greater understanding, help to change the tone and often explore additional non-financial options that are important to the client. It is also common for a better understanding of the financial elements to emerge as well.
Clinical negligence cases almost always have a considerable emotional content which lies at the core of the dispute and has an impact on it, especially if unaddressed. Sensitive management of the process by the skilled mediator means that patients and/or their families can, if everyone agrees, speak directly to clinicians and hospital managers in an environment that is safe for all concerned. These meetings can be central to finding a way forward where the parties themselves feel that they have been involved in determining the outcome in their own case, without feeling threatened, intimidated or marginalised.
Where parties feel unable to meet, as a neutral the mediator is in a unique position to identify where indirect dialogue will improve understanding and thereby the prospects of a positive outcome. Through the commitment to keep private information confidential, the mediator can have candid conversations with each party and better understand their needs and interests. Keeping that confidentiality sacrosanct the mediator can find common ground and help the exchange of information within the negotiation, enhancing the prospects of resolution.
Two of the salient qualities of mediators need to be patience and persistence. Part of the job is to keep people in dialogue, directly or indirectly, possibly when they feel there is little point in continuing at that time. What happens at mediation is dynamic; things can change quickly and what seems to be an intractable dispute at 2pm can be resolved by 5pm. By encouraging people to see that resolution is still possible and to stick at it, or by remaining involved after if the day has not produced a resolution, mediators are able to help parties overcome apparent deadlock so that resolution becomes possible. This is not because the mediator is a better negotiator, but because the parties and the mediator working together can find a way forward that bi-lateral negotiations via JSM are not be able to.
Client’s Best Interests
The core question is, of course, what is in the client’s best interests. In pursuing a clinical negligence case there are a number of process choices including: going to court, direct negotiation, JSM and mediation. Which process is in the client’s best interests will vary with the circumstances of the case. Mediation can give clients more than the other processes, even more than going to trial. This is not the place for us to consider the substantive benefits of mediation beyond noting that these include: client involvement, a high chance of resolution, increased scope for non-financial elements, certainty and reduced stress. Clearly there are many others to add to the list.
Parties to clinical negligence disputes and their lawyers have much to gain by incorporating mediation more fully into their negotiation strategies. This is not to say that JSMs do not have a role in those strategies; however, mediation can offer much more in many cases, while keeping the parties’ legal representatives at the heart of negotiations for their clients, whether they are claimants or defendants.
This issue, among others, will be explored further during CEDR’s conference on Mediation in Public Healthcare on 26 September. To inquire about this conference or to book your place, email firstname.lastname@example.org.