Case Study

A better way to resolve clinical disputes?

6th March 2020

A better way to resolve clinical disputes?

Mediation and other forms of Alternative Dispute Resolution (ADR) are often regarded as a necessary 'tick box' exercise in Clinical Negligence claims, says solicitor Jenny Tetlow.

The Pre-Action Protocol for the Resolution of Clinical Disputes encourages all lawyers to consider, wherever possible, alternative means of resolving a dispute and if court proceedings are issued, the parties may actually be required to provide evidence that ADR had been considered.

Jenny said: “On the face of it, mediation sounds like a good idea - litigation is lengthy, expensive and in most cases, impersonal. However, for many practitioners the concept of mediation is far more appealing than the reality!

“Many claimant solicitors report engaging with defendant solicitors who have agreed to mediate simply to fulfil their obligation to consider ADR, but who ultimately do not have the authority to effectively engage in the process let alone seriously consider settling a claim on the day. This type of behaviour fosters cynicism in claimant lawyers who are reluctant to raise their clients' hopes by advising that their claim could be settled at mediation.”

The good news though, added Jenny, is that recent figures suggest the landscape is changing.

“A record number of claims against the NHS went to mediation in 2018/19, with the majority resulting in damages being agreed on the day. Statistics from the Centre for Effective Dispute Resolution (CEDR) reveal that mediation is being considered earlier in the process, with two thirds now taking place prior to the issue of court proceedings.

“This suggests that the considerable benefits of mediation are finally being realised. Aside from the obvious cost benefit, claimants themselves report satisfaction from feeling more involved in the process. CEDR are now campaigning for clinicians who are personally involved in a dispute to be personally present at mediation, enabling them to communicate face to face with the injured party.

“Despite all of this, only a fraction of the new clinical negligence cases opened last year went to mediation. Whilst there is evidently still work to be done, the progress that has been made in the past year alone is undeniably meaningful.”

The experienced Clinical Negligence team at Higgs & Sons are well versed in the Mediation process and have seen first-hand how genuine engagement in the process can help their clients. If you are concerned about medical treatment you or a loved one have received and would like to talk to one of the team, please get in touch on 0345 111 5050.


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