28 January 2000
Mediation would target more NHS money at patient care
Contrary to popular belief, victims of medical negligence are not motivated by the possibility of getting vast sums of money in compensation. This is the finding of an independent report commissioned by the Department of Health. The report 'Mediating Medical Negligence Claims: An option for the future?' analyses the findings of a three year pilot study led by Linda Mulcahy into the effectiveness of using mediation to resolve clinical negligence disputes.
The study shows that at the start of a claim, monetary compensation is low on the list of ten claimant wants (number eight) and even when contacted by the study a period of time after the case was closed, money was still not their top priority. When looking at the disparity between what they wanted and what they got, money was again not really a concern. The largest disparity involved claimants not being reassured that steps had been taken to prevent a similar mistake. Other significant claimant wishes were to know that the defendants cared, to make them understand the pain the incident had caused the claimant and for the defendants to admit fault. These are all qualitative needs that cannot be addressed through traditional litigation.
The report demonstrates that the inability of litigation to address these issues leads to 70% of claimants who pursue their claim through litigation remaining totally or very dissatisfied with the outcome of their claim even when they have won damages.
"These findings come as no surprise to us", says Bill Marsh, Director of Mediation Services at CEDR, the leading commercial mediation providers. "It is clear to all who have been involved in mediation that the process affords all parties involved the opportunity to explore non-monetary solutions in addition to traditional compensation." As one claimant in the scheme commented: "My solicitor didn't understand my need to be told. Money won't keep me from worrying and thinking... thinking, thinking, thinking, will it?"
Far fewer cases were referred under the scheme than expected. The report attributes much of this to the reluctance of lawyers and insufficient experience of the process in some of the solicitor firms working for the NHS Litigation Authority. Concerns were expressed by many involved in the scheme that the NHS Executive did not adopt a sufficiently strong approach to the management of the pilot scheme and that the Litigation Authority was insufficiently proactive in supporting it.
Many lawyers argue that 'everything which is achievable through mediation is achievable through bi-lateral negotiated settlement'. "In theory this is true. In practice it is not. Non-monetary solutions are very rarely canvassed in direct negotiations," says Marsh. "But worst of all, settlement discussions all to often only take place in the few weeks, or even days, leading up to trial. By this time huge legal fees have been spent, and the claimant and clinician have been living under the spectre of the court case for several years. This cannot be the best approach."
The report quotes a solicitor who participated in one of the scheme's mediations: "We often get stuck or held up [in negotiation]. I feel that a trained mediator will facilitate a way forward and get people to talk to each other... Once you take a strong line it is hard to retreat without some help."
"Some also argue that clinical negligence is too complex an area of law, or that claims values are too high for mediation to work," says Marsh, "but the facts are quite the reverse. Cases of great complexity are successfully mediated most days in the UK, in all areas of law. Also, since 95% of suits filed never reach court (i.e. a negotiation takes place, albeit last minute) these cases are by definition capable of being settled without a trial and hence by mediation."
Cost savings are a significant issue in the evaluation of mediation. The report's findings back CEDR's belief that mediation has little impact on likely compensation levels. The report's conclusions on the actual costs of mediation are inconclusive, due largely to the small number of cases that went through the scheme. However the report does state that: "NHS representatives were often of the view that it had been economical in terms of costs and allowed a greater proportion of NHS funds to be channelled to patients rather than lawyers." CEDR's ten-year experience of mediating the complete spectrum of commercial claims is that there are potentially considerable cost savings in all types of dispute.
The fact that increased use of mediation within the NHS could save NHS Hospitals money and therefore potentially fund more beds, must be seen as a bonus. Mediation is not a panacea for all disputes and it is certainly not a panacea for the budget problems of the NHS! However, NHS Trusts must be made more aware of its benefits. The House of Commons Select Committee on Health recommended in November 1999 that the Government acts on the findings of this pilot scheme report and improve the funding, and other arrangements relating to mediation with regard to clinical negligence claims.
"The time for debate about mediation is over," says Marsh. "This report shows how much it can contribute to clinical negligence claims. The House of Commons Select Committee on Health has called for its greater use and the Woolf reforms to the civil justice system put mediation high up the legal agenda. It is time for lawyers to use mediation, and use it regularly."
Notes for Editors:
"Two mediation agencies were selected by the Department to provide mediators during the course of the mediation pilot: CEDR (the Centre for Dispute Resolution) and the ADR Group based in Bristol. There are two significant differences between these mediation providers. Firstly, their training programmes differ in length. Secondly, ADR Group mediators are all lawyers, whereas CEDR has mediators from a range of disciplinary backgrounds, including medicine."
The report also deals with a number of other issues on which CEDR would be happy to comment, including:
- Standards and ethics of mediators
- Inequality of representation in mediation
- Costs of successful and failed mediations
- Suitability of cases for mediation
- Compulsory mediation
Mediating Medical Negligence Claims: An option for the future? Is written by Linda Mulcahy, with Marie Selwood, Lee Summerfield and Ann Netten. It is published by The Stationary Office and priced £17.50. To order telephone: 0870 600 5522, or visit: www.tso-online.co.uk
CEDR (the Centre for Dispute Resolution) is internationally recognised as providing expert third party conflict management and unparalleled mediator training.
CEDR is a not-for-profit organisation with charitable status. Its mission is to encourage cost effective dispute prevention and dispute resolution in commercial and public sector disputes and in civil litigation. CEDR operates in the UK and internationally and has been instrumental in helping to bring ADR into the heart of business practice and into the judicial system.
CEDR has managed over 3,000 mediation referrals covering every industry sector and a wide-ranging cross section of disputes and case values ranging from less than £5,000 to £1bn matters. Its settlement rate remains one of the highest, at 85 per cent, with mediations lasting an average of 1.1 days and average cost savings of over £85,000 per party per case.
For further information please contact:
Telephone: 0171 600 0500