Mediating Clinical Claims – Advice for Lawyers and Clients
by Tony Allen
This article seeks to provide a broad overview of clinical negligence mediation for those both familiar and unfamiliar with the process as well as practical advice for lawyers operating in this field.
It is broken into six key areas:
- Settlement as a norm for clinical claims
- Setting up and preparing for a clinical negligence mediation
- The mediation day – in person or online
- Why use mediation?
- Does mediation work?
- Advice for lawyers
1. Settlement as a Norm for Clinical Claims
It is common knowledge that clinical negligence claims almost always settle without trial.
NHS Resolution’s Annual Reports show that this is an increasing trend. Figures released by NHS Resolution in July 2022 show that a mere 55 claims out of 16,484 total concluded claims (including some non-clinical claims) actually went to trial, of which the claimants won 19 and the defendants 36.
Over three-quarters of concluded claims settled before issue of proceedings, up from 74% in 2020-21 and 71.7% in 2019-20.
But settlement by no means necessarily connotes payment of compensation. Just under half of cases notified to NHS Resolution were closed without payment of compensation, up from 44% in 2020-21 and 43% in 2019-20.
So damages were only paid out in just over half of notified claims. Remembering also that claimant lawyers rigorously screen out claims seen as unlikely to succeed before taking them on under a CFA, the high proportion of failed claims is even more stark.
What we do not learn from NHS Resolution’s reports is the proportion of claims settled by various settlement processes, whether by withdrawal or discontinuance; by simple negotiation through telephone or correspondence between themselves or their panel firms and claimant lawyers; by acceptance of Part 36 or Calderbank offers; by round table meetings; and by mediations; or even as a result of neutral evaluation.
Use of “ADR” is firmly expected by the courts in clinical claims, as set out in the Pre-Action Protocol, and also the standard Kings Bench “Fontaine” direction requiring its use “at all times”.
The use of mediation itself is sometimes specified, or sometimes a range of “ADR” processes are listed. “ADR” itself as an acronym is under fire from no less than the Master of the Rolls, who sees “Alternative Dispute Resolution” processes as normal and integral to a modern civil justice system, and thus not “alternative”.
Since 2015 NHS Resolution has encouraged the use of mediation for clinical claims through its mediation scheme, while of course still using a spectrum of other settlement processes.
Mediation is perhaps the most formal settlement process and therefore involves more preparation, time commitment and cost.
So why should mediation nevertheless be selected as the process of choice in a given case, and how can its advantages be best deployed?
This article looks first at what a typical clinical mediation looks like (for those who have not used the process before).
It then goes on to explain some of the ways already in place to best use the process and some more ideas over further extending the process.
This article does not deal separately with benefits for claimants and defendants for reasons that will emerge. This is in general because mediation is a process in which, once started, the parties engage consensually and confidentially, and each party has to be just as aware of and sensitive to the other party’s likely needs and objectives as their own.
2. Setting up and Preparing for a Clinical Negligence Mediation
Either the claimant or defendant can propose mediation at any time, seeking to utilise the NHS Resolution Mediation Scheme.
Lawyers can agree to approach any of the approved mediator provider organisations (currently CEDR and Trust Mediation for substantive disputes: costs disputes are handled separately), who each have established panels of experienced mediators who have been vetted for suitability for this sector.
The parties can agree to a named mediator or can make a choice from a list proposed by the provider.
Each mediation will be case managed by the relevant provider, helping parties to reach agreement over date, venue (if in person) or on-line, and timetable for documentation.
An approved mediation agreement will be sent to each solicitor for signature by solicitors on behalf of their clients. Fees are on a set scale based on the value of the claim as alleged by the claimant, and are markedly less than open-market commercial mediator rates. A fee waiver may be possible. Otherwise, fees are normally split equally and payable prior to the mediation, after which they will become costs in the case.
The mediator will usually make contact with each solicitor well in advance of the date set, to check details of the case, answer any queries, agree what documents might be used, and discuss the likely shape of the mediation, including who is going to attend.
The mediator will offer to speak in advance of the mediation with anyone in either team who would like to understand how the process might work and how to prepare for participating, especially those for whom mediation is a new experience.
The claimant or claimant family will often take up this opportunity but it is equally open to healthcare professionals in the defendant team. It saves both time at the start of the mediation and reduces worry in the run-up to the mediation to have such conversations.
Such conversations are normally by telephone or online, and lawyers are always welcome to attend as well as their clients. Any online platform to be used for the mediation itself can be demonstrated and parties reassured about how the mediator will operate it.
The mediation bundle is almost always agreed and exchanged electronically now, and the mediator will have read it before the mediation.
3. The Mediation Day – In Person or Online
Whether conducted face-to-face or online, each mediation will be set up in a similar way.
At the commencement, the mediator will move each party into their own private virtual space or room in which to have entirely confidential conversations on their own, separated from any other party throughout the mediation.
There will be another space or room in which any agreed joint meeting between the parties can be set up by the mediator, who will normally chair any such joint meeting.
If the mediator is invited into either party’s private space, what the mediator hears is entirely confidential to that party, and can only be conveyed by the mediator elsewhere with specific permission.
The whole process is run confidentially as set up by the pre-signed mediation agreement, and nothing which is discussed at the mediation can be adduced as evidence at a later trial, nor can it be generally published.
If settlement is agreed, there is in NHS cases, no restriction on revealing the fact and terms of settlement to anyone.
The process is entirely flexible.
The mediator will discuss and advise on options for next steps throughout the mediation and seek to establish consensus as to what might be done next.
So mediations can range from being entirely in joint meetings to parties never meeting, with each simply remaining in their private space, with the mediator moving between them.
Usually, a mix of such meetings is used.
It is usual for all who attend to use first names, unless otherwise agreed.
Mediators will strive to make participation in the process as comfortable and relaxed as possible and there is none of the formality of a court-room.
No contributions within the mediation are made on oath or subject to statements of truth, and there is no formal cross-examination of witnesses. Questions may be raised and asked by anyone but there is no requirement to answer them.
The Mediator’s Job
The mediator is neutral whose job is to run the mediation process as effectively and as comfortably as possible for the benefit of the parties, so as to give settlement the best chance of being achieved.
Mediators have no authority to make directions as to conduct of the process – they operate by consent at all times.
The mediator will not express opinions as to the merits of either case, nor to press the parties to settle. Frank discussions and questions in the privacy of each space might by raised by the mediator, but no one can be compelled to respond, and each party has complete control over what the mediator may convey from party to party.
Mediators are experienced managers of negotiations in mediation who will suggest what might or might not work next, based on confidential discussions in each room (though never breaching that confidentiality) but each party ultimately takes responsibility for their own bargaining strategy.
Settlement or Not
Terms may begin to emerge and offers and counter-offers made throughout the day. These can be made across the table or conveyed from party to party by the mediator.
Over 75% of clinical mediations settle on the day, and those that do not often settle soon afterwards (circa 10%) as a result of the exchanges at the mediation.
Agreed terms need to be recorded in writing to be binding, either in a written agreement or in a Tomlin Form consent order.
If the claimant is under a legal disability, court approval will still be required, but is hardly ever not given to a mediated settlement.
4. Why use Mediation? What about Remote Negotiation or a JSM with a Trial as Back-up?
Clinical claims may seem to be just about litigating for or against payment of compensation, for whichever side.
But research has shown that there is far more at stake in clinical claims for both claimants and their families and also clinicians.
The former have a powerful sense of having been let down by professionals over healthcare in ways which may have fundamentally affected the lives of their family and themselves. Strong emotions may abound – anger, fear, guilt, frustration.
For NHS clinicians and administrators, parallel feelings may emerge – worry about their level of ability or reputation, guilt and fear again, maybe anger at being accused of incompetence or at having slipped up, and frustration about NHS systems.
Legal process pays little heed to these very significant feelings.
Indeed, it is designed to keep protagonists apart, distanced by inter-lawyer communication up until that vanishingly rare event, the courtroom trial.
What mediation does is accommodate the possibility of articulating these emotions in ways that the legal system simply does not provide.
It creates a safe environment managed by an experienced neutral, in which people can explore the possibility of direct honest communication with each other, offering the possibility of a wider kind of resolution than mere financial compensation. Every UK citizen is a potential user of the National Health Service, in which we have little alternative than to place trust.
A medical accident inevitably damages that trust, and attention should be given to repairing that breach when it has occurred. Uniquely among indemnifiers such as commercial insurers, NHS Resolution accepts a responsibility to those who sue the NHS. Its Framework Document reads
The Department [DHSC] and NHS Resolution will work together, and with the Department’s other arm’s length bodies, in the interests of patients, people who use services and the public to maximise the health and well-being gain for the population, working to the values set out in the NHS Constitution.
6.2 To support the development of this relationship, the Department and NHS Resolution have agreed to a set of shared principles…..Working together for patients, people who use services and the public, demonstrating our commitment to the values of the NHS set out in its Constitution.
Adversarial litigation and trial cannot facilitate this.
But mediation can and should always make it possible to explore this dimension to clinical disputes, remembering that discussions about compensation can also proceed in parallel and in the great majority of cases succeed in producing agreed settlement terms on the mediation day or soon after.
In practical terms, therefore, apologies and explanations as to what happened and why can be given, and lessons learned by the defendant NHS organisation can be explained in person to and by those directly involved.
Furthermore, such expressions of empathy need not necessarily connote concessions.
Mediation can legitimately be used to explain why legal liability is not made out, coupled perhaps with an acknowledgement that the clinical outcome was unpleasant and undesired. I have experience of mediations where this has been the defendant’s declared purpose.
However, some conversations at mediation have prompted a change of mind by the defendants; in others, claimants have accepted the defendant’s assertions and discontinued their claim.
As there is absolutely no criticism possible of parties over not settling at a mediation, nothing is lost if parties do not settle, except some costs which might well have been expended anyway at another stage. Further, each party understands the other’s case fully and can review their best interests before committing to a trial.
One of the mediator’s key roles at a clinical mediation is to give the lay parties as much opportunity to participate and communicate as they wish to take.
At a JSM, there is no neutral chair to ensure that this happens, and in all honesty such settlement meetings are dominated by the lead lawyers for each party, who will typically be preoccupied with the legal issues.
A joint meeting sympathetically chaired by a mediator who has helped a lay claimant or a doctor to find a safe opportunity to express the right words to each other stands a good chance of generating a degree of resolution which no other process can deliver.
Very often it is really important to a claimant or family member just to feel permitted to articulate the impact of adverse events across a real or virtual table, and equally for a clinician to acknowledge that harm has been done and express personal regrets for what went wrong.
The laws of evidence as to relevance and admissibility do not apply to such conversations. The inherent value of such opportunities for lay parties is often under-appreciated by lawyers on both sides.
5. Is Settlement an Unsatisfactory Compromise? How does mediation work?
Settlement of any kind is almost always about compromise, whereas adjudication at trial usually imposes a win/lose outcome on the parties.
What mediation does very well is to create a safe place in which frank discussion between parties and internal private reviews can take place, conducted with the assistance of a neutral who engages with both parties privately and chairs their joint meetings.
Experience shows that the presence of a neutral mediator to ease parties into conversations with the mediator and then with each other can generate more effective conversations than often are found in bilateral negotiation meetings.
Consequently, parties can each revisit their analysis of the risks of not achieving their best case in privacy and in discussions with the mediator without revealing their hand. They can then explore the possibility of finding risk-discounted settlement terms acceptable to all, knowing that if settlement is not reached, any offer or concession they made within the mediation is entirely confidential and cannot be used in front of a judge.
Judges cannot penalise parties for not settling at mediation: they can only penalise them for unreasonably refusing to mediate!
As well as giving lay parties the chance to say what they wish unfettered by the law of evidence, mediation makes possible a range of outcomes which are not limited to what a judge can order at trial.
Face-to-face apologies and a full review of lessons learned are both commonly available at mediation.
Claimants have been invited to contribute personally to staff learning about what went wrong and have willingly agreed to do so. A more direct route to future treatment has been negotiated. A memorial of some kind to a dead loved one on NHS premises has been installed.
These examples are far from exhaustive, and other imaginatively conceived outcomes are possible. The inherent value of such extra-legal “remedies” to lay parties is again often under-appreciated by lawyers on both sides.
6. Advice for Claimant and Defendant Lawyers
Propose Mediation Early
Give serious consideration to proposing mediation before the issue of proceedings, as required by the pre-action protocol. As noted above, last year over three-quarters of NHS claims were concluded without proceedings.
Compliance with the protocol should highlight the main issues, and even if evidence is not complete or disclosed, experienced legal teams in this sector can have an intelligent appreciation of how unresolved issues might turn out.
Mediation can itself add to knowledge and understanding of any case sufficient to clarify assessment of risks. Bear in mind too that lay parties – both claimant and clinician – usually do not welcome litigation and are often keen to try to resolve disputes quickly.
Mediation provides a good forum for a relatively early appraisal of a case, and a good chance of possible resolution.
If it does not settle, neither party’s litigation rights or allegations have been in any way compromised. But what frequently happens is that even if the dispute is not settled on the day, the review process initiated by preparing for and attending the mediation moves thinking forward and frequently leads to further discussions and early settlement.
Remember Emotions are Important
In considering whether and how to mediate, remind yourselves that clinical claims always have emotional components for both parties, and that the mediation process (unlike court trial or arms-length settlement processes) makes it possible for both the claimant or claimant family and clinicians involved to participate personally and to choose whether and how to deal with these important human feelings.
- Check with each other and with your own clients what they feel about such matters, and what they would really like to see achieved.
- Discuss the position with the mediator and consider who should attend in order to generate the best chance of dealing with these other considerations.
- Give thought to any imaginative extra-legal outcomes that might be of interest to the other party, in case advance work is required to make sure that they are practical and feasible.
In considering whether to advise neutral evaluation as opposed to mediation, look at the decision through the eyes of the parties, especially the claimant (whether you act for claimant or defendant):
- Are the issues in this case best resolved by a non-binding third party view as to the law or the cogency of differing expert views?
- Is it (ironically) too early for an “early neutral evaluation”? Has enough material been disclosed for this to be worthwhile? Bear in mind that even if it might be too early for an evaluation, it may well not be too early to explore settlement by mediation, and early resolution may be welcome to claimants and clinicians alike. Mediation does not require exhaustive exchange of evidence for settlement to be negotiated.
- Is there a risk that mediation might still be required to resolve continuing differences when the evaluator favours one party’s view over the other? What is your plan if the evaluation goes against your case?
- Might settlement on a risk-discounted compromise basis be safer or more attractive to your client than responding to a quasi-adjudicative evaluation which is likely to be a rights-based view of past events or opinions?
- Is this a case where the claimant would welcome a voice, or to learn directly from the defendants what went wrong and what lessons have been learned, with the defendants welcoming a chance to explain and apologise personally, rather than the parties’ simply receiving an evaluator’s opinion? How will this claimant probably react to that outcome?
- Could it be important for both claimant and defendant to turn some of the focus on future relationships instead of trying to resolve by quasi-adjudication differing views as to the past? What if this claimant – inevitably a probable future user of the NHS in some form – is also a continuing or potential patient of the defendant Trust or GP practice?
When Mediation is Chosen
Encourage your clients to speak to the mediator by telephone or online before the mediation day to help them understand what the mediation will be like and to get a feel for the mediator.
This will save time on the mediation day, reduce unnecessary advance nerves, as the mediator will give reassurance that participation is safe and no one can damage their “on the record” case by what they say.
Empower your clients to participate as fully and frankly as they wish at the mediation. Help them prepare for a joint meeting, perhaps by writing down what they might wish to say in full or in bullet-points.
My firm experience is that far more claimants and clinicians appreciate the opportunity to speak than their lawyers might think or indeed facilitate. But their lawyers are there to read it or speak for them if they get upset, embarrassed.
In preparing to speak at the mediation, think carefully about the likely impact of what you say, without in any way flinching from expressing strength of feeling. Time and again, mediators see that honest and brave expressions of view by claimants and clinicians have a significant impact on those listening and really influence the way the mediation progresses.
Defendant teams need to think carefully whether to apologise or express regrets and how to do so in a way that this claimant can bear to receive it. Claimant teams need to be prepared to listen to and appreciate apologies and expressions of regret.
The mediator will want to set up such matters sensitively, checking in advance of any joint meeting what will work and what will not with each team. Lawyers can prepare the ground by talking this through with their clients before and on the mediation day.
In cases involving quantum only, where breach of duty and causation have been admitted, do not assume that the claimant and clinicians no longer are interested in why things went wrong and what lessons have been learned.
If the mistake was egregious, it may need much more explanation and evidence of corrective steps to satisfy those upset by what happened than in cases where breach and causation are in dispute.
Begin in advance to engage in (to be continued in private at the mediation with or without the mediator involved) of being honest about areas of weakness in your legal case, and where the chances are that your best case will not be achieved at trial. Start managing your client’s expectations before the day, to avoid any awkward accusations which might result in loss of confidence in the client’s legal team.
As a minimum, ensure that the bundle for the mediation makes the issues clear – usually set out in the LoC and LoR in pre-issue cases, and in the pleadings in issued cases, plus as full an up-to-date schedule and counter-schedule of claims as possible.
Mediators will only rarely need to see the full medical records of the claimant and certainly not the vouchers for expenses. They will need to see expert reports, joint expert summaries (where available) and witness statements in cases where breach and causation are in dispute.
Make sure that you tell the mediator about any previous Part 36 offers and interim payments made and when. As the mediator is not a judge there is no need to keep that information undisclosed: indeed the mediator will want to know the parameters of previous settlement offers to make sure that mediation discussions are not set back by reneging on past proposals.
In fatality cases, the position over probate should be clear. Claimants should have updated details of costs available in case these fall to be discussed, and also be clear about what impact any success fees or other costs charges to the claimant will have on what the claimant actually receives. Defendants should ensure that there is an updated CRU certificate valid beyond the mediation date, for similar reasons.
Keep the mediator informed of any changes of temperature and pulse rate in your team. Although mediators are trained to be keenly observant and to listen actively and carefully when with each team, if anything significantly changes while the mediator is not with your team, find an opportunity to tell the mediator, perhaps by dropping into the mediator’s room, to convey this.
When final offers are being considered, claimant lawyers need to help their client understand what might yet be deducted by way of success fee or shortfall costs. In cases where settlement is being mooted at a considerable discount from the claim because of perceived risks that the claimant may not win, defendants may suggest that claimant solicitor share in the claimant’ pain by accepting a lesser amount of costs, bearing in mind that, with no-win-no-fee finding, if the claim is lost, the claimant’s legal team will not recover any costs.
Where the claimant lacks capacity, court approval will be required for any settlement terms. It is vanishingly rare for terms negotiated at a mediation not to be approved, but it is wise to have the claimant’s counsel present at the mediation who will then be in a position to explain and justify a significantly risk-discounted settlement to the judge.
Above all, appreciate and utilise the fact that mediation is a flexible process which can be used imaginatively for the benefit of the litigants themselves.