Mediation in Medical Negligence Claims
Introduction Mediation is often presented as a gentler alternative to litigation for injured claimants and their families. However, this perception can lead claimant lawyers to hesitate in recommending it, particularly for stronger or higher-value claims. This article argues that, with the right approach, mediation can be a valuable tool for claimant lawyers, offering clients a wider range of resolution options. What is Mediation? Mediation is a form of alternative dispute resolution (ADR) where a neutral mediator facilitates communication between parties in a legal dispute to reach a mutually agreeable settlement. Unlike court proceedings, mediation is less formal and allows for more flexibility, enabling patients to express their concerns directly to healthcare providers. The mediator cannot force a settlement but helps parties reach an agreement through open discussion and reality checks. Is Mediation Compulsory in Medical Negligence Claims? No, mediation is not compulsory in High Court medical negligence claims. However, the court may require an explanation from any party refusing to participate. Therefore, even committed litigators should be prepared for the possibility of mediation. Proactive Preparation for Successful Mediation Effective mediation hinges on proactive case management. This involves: Mediating with NHS Resolution Despite NHS Resolution’s defensive stance in some cases, successful settlements have been achieved through mediation. This raises questions about their willingness to settle strongly defended claims via ADR, potentially contradicting their stated goal of reducing litigation. While NHS Resolution emphasizes keeping patients away from lawyers and court, their focus on promoting ADR suggests a strategic shift towards demonstrating a higher rate of mediated settlements. Which Cases are Suitable for Mediation? Generalizations about suitability for mediation should be avoided. However, some key considerations include: Beyond the Pleaded Case: Mediation can address broader concerns beyond the formal legal claims. For example, it allowed a client to express frustration about a misdiagnosis and have their medical records corrected, alongside receiving compensation. Sensitive Issues and Closure: In another case, mediation provided a more sensitive forum for acknowledging the client’s suffering and achieving closure compared to a potentially adversarial court hearing. Conclusion Mediation, when approached strategically and with proper preparation, can be a valuable tool in medical negligence cases. It offers clients a wider range of resolution options, potentially leading to quicker settlements, reduced costs, and addressing broader concerns beyond the legal claims. `