Why so few Clinical Negligence cases go to mediation

Recently, Helen Vernon, the head of the NHS body which defends clinical negligence claims decided to blame claimant lawyers for so few cases going to mediation, click here.

The organisation, NHS Resolution (formally the NHS Litigation Authority) has developed a new mediation service. That mediation service, according to its chief executive (with whom I have no reason to disagree) has completed only 71 claims in the last 10 months. This appears to have been part of the justification as to why the NHS has not been able to resolve the thorny matter of increasing legal costs in clinical negligence cases.

Ms Vernon did indicate that two thirds of cases were kept away from court. However, she considered that mediation was not working and that was not the fault of the NHS.

To quote:-

“To be frank, we have found this quite difficult to get off the ground, particularly because there has been some resistance from claimant lawyers whose preference is for the more formal route”

On the face of it this would seem a simple but effective argument. Some facts about clinical negligence law may be of assistance here. There are a small number of experienced legal teams who undertake work on behalf of the NHS. There are a slightly larger number of claimant law firms but most of us who have been doing the work for a long time are familiar with each other.

Contrary to the assertion that is sometimes made, claimant lawyers and defendant lawyers in clinical negligence often work quite closely together in setting the timetable for the case and in dealing with problems that arise on both sides as the case progresses. It is by no means unusual for a defendant lawyer to call me and confirm that their expert is running late on providing a report and for me to grant extra time, as it is for me to contact my opponent in the case and ask for additional time to serve evidence that is required. There is a large degree of co-operation in clinical negligence cases.

At the stage where the experts have provided the “joint statements” indicating the areas where they are in agreement and those which are in dispute, both parties will have an idea of the strength and weaknesses of their case and what is likely to happen as the claim progresses. It is usual for the parties to have a meeting to discuss settlement in larger claims and in smaller claims, simply to try and resolve the matter by way of offers of various kinds on both sides. Those meetings are conducted generally with solicitors and barristers and do not require a mediator.

Adding a mediator to that process does not assist at all. The legal teams who work on behalf of both parties are generally experienced. If, at the end of that, it is not possible to conclude a case, then it may ultimately end up in court. It does not end up in court, however, without both parties trying to resolve some or all of the issues. Experienced solicitors on both sides do that routinely.

I have recently been involved in a mediation in a case in which the mediator was very experienced but within approximately an hour, he had indicated that it may be better for the lawyers to get together and discuss the matter to try and resolve it. It was also quite clear that the legal teams themselves could have resolved and settled the matter without recourse to a mediator.

There are very few cases of clinical negligence which require mediation. This is not because there is something fundamentally wrong with mediation. It has its place. There are plenty of cases in civil proceedings and family proceedings where mediation may be a very valuable tool. In the face of cases where the solicitors on both sides are experienced and can see the issues that are in dispute, there is no reason to involve a mediator and to incur that cost. When Ms Vernon indicates that two thirds of cases are kept away from the court, that is because a substantial amount of those settle without the use of mediation.

Instead of the NHS attacking claimant lawyers for the costs that are being incurred, it would be more helpful if there were earlier admissions of liability.   It would similarly be more helpful if the medical records were provided in a timely manner in good order. It would also be helpful if the process was quicker. Once a letter is sent to the other side, detailing the claim, the NHS take four months to respond. The process is long and, as a result, costly.

Mediation in clinical negligence is a red herring. It is not a failure to mediate that increases the cost. It is the court process being long and difficult and it is the failure of the NHS at the outset to admit those issues which really should not be in dispute.

The solution to the increase in costs is to get the NHS to be more efficient at dealing with claims and admitting at the outset where it has gone wrong. It is not, at the very end of the process, to involve a highly qualified expensive professional to deal with matters which the legal teams could and would have dealt without that expense in any event.