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Medical Negligence - How Mediation Can Help Resolve Claims

Those suffering injuries due to medical negligence are often deterred from pursuing a claim due to misconceptions about how legal disputes are resolved. Most clients presume they can only recover compensation following a lengthy trial and stressful cross-examination. However, the reality is quite different.

There are a number of alternatives to issuing court proceedings, with very few clinical negligence claims actually going to trial. In 2018/19 less than 0.5% of claims against NHS Trusts resulted in an issue of court proceedings. ADR (Alternative Dispute Resolution) is the ‘catch-all’ name for alternative methods of resolving disputes outside court. One method that is becoming more frequently used in medical negligence disputes is mediation.

What is Mediation?

Mediation is a form of ADR where an agreed independent and impartial third party (a mediator) assists the parties to resolve their dispute. Its use has greatly increased in recent years across all areas of civil litigation and it is rapidly becoming an invaluable tool for the resolution of complex medical negligence claims. Figures from NHS Resolution show a 110% annual increase in mediation for medical negligence claims in 2018/19.

What are the advantages of settling a claim via mediation as opposed to in court?

Mediation offers all parties a number of distinct advantages compared to resolving a claim at trial, including:

  • Resolving claims in a shorter time-frame; the date of the mediation can be agreed at a time and place convenient to all parties and claims are often resolved on the day, whereas court proceedings take years to conclude.
  • Reduced costs; whilst this will not have a direct impact on claimants represented under a ‘No Win, No Fee’ agreement, mediation can significantly reduce the costs of the legal process, and so achieve significant savings for defendant NHS Trusts.
  • Confidentiality; all mediations are confidential. Anything said within the mediation meeting cannot be used as evidence at trial nor discussed with those outside the mediation process. Where the issues are personal or sensitive, mediation offers an opportunity to resolve claims discretely, away from the public and press gallery of the court room.
  • Obtaining answers from the relevant clinicians; a growing trend in mediation is the attendance of the treating doctors. This allows claimants to receive a face-to-face explanation of the treatment given and to put their concerns directly to those responsible.
  • A wider variety of remedies; if a claimant is successful at trial they are entitled to damages (financial compensation), but this is typically all the court can do for them. Courts cannot order a defendant to apologise to a claimant nor can it direct that a defendant should offer support such as counselling. In a mediation remedies can be explored by the parties which can lead to some claims being more satisfactorily resolved through this method of settlement.

Fosters Medical Negligence Team act for many clients with a wide variety of claims in all forms of medical negligence, and have resolved numerous claims through mediation. If you believe you have experienced sub-standard treatment, we would be happy to discuss with you on a free of charge, no obligation basis. We can be contacted on 01603 620508 or freephone 0800 731 8539.

This article was produced on the 2nd July 2020 by our Medical Negligence & Inquests team for information purposes only and should not be construed or relied upon as specific legal advice.