The Future of Clinical Negligence Mediation: The Mediator’s View

A Review by CEDR Chambers Mediators

Access the PDF and Interactive Version of this Review here.

Executive Summary

This report, agreed by several very experienced mediators on CEDR’s clinical negligence panel, and approved by both CEDR’s CEO and its Director of Commercial Disputes, looks at the successful growth of the use of mediation in clinical claims in recent years through the eyes of the some of the mediators most involved in delivering the process.

Section A briefly reviews the current legal context, and the enthusiasm expressed by the new Master of the Rolls for extending the role of mediation and other forms of ADR.

Section B reviews the true meaning of “success” in relation to the mediation of clinical claims, illustrating “success” in a number of different ways for both claimants and defendants, as seen from the mediator’s neutral viewpoint.

Section C looks briefly at other processes for settling clinical disputes.

Section D examines four ways in which the authors suggest that further or different deployment of mediation processes could tackle some of the continuing challenges still confronting the clinical sector, looking at:

1. Better complaints handling, so as to reduce the number of claims
2. How to mediate cases earlier (and thus reduce time, cost and strain for claimants and Trust staff;
3. Improving the way mediations are currently set up and run;
4. Making special arrangements for serious birth defect and other major claims.

Section A.  Introduction

The NHS Mediation Scheme is into its fifth year since it emerged permanently from its initial pilot.  A group of CEDR mediators thought it might help stakeholders in the Scheme (both claimants and defendants) if they pooled some of the lessons learned and challenges observed from their work on CEDR’s clinical negligence panel.

The Civil Justice Council’s recently published report Compulsory ADR identifies that in theory at least the courts can actually order parties to use mediation as well as other forms of dispute resolution, and that, contrary to the view expressed in Halsey v Milton Keynes NHS Trust in 2004, such mandating of the use of mediation does not contravene the right to a public trial enshrined in Article 6 of the ECHR.

It was rather unfortunate that it was a clinical negligence claim -­ Halsey – that for some years led to restraint on the development of mediation generally.   That restraint has theoretically dissipated now, and the NHS Litigation Authority’s change of working title to NHS Resolution seems prescient in the light of the remark recently made by Sir Geoffrey Vos MR, the new Head of Civil Justice, that “ADR should no longer be viewed as alternative, but as an integral part of the dispute resolution process; that process should focus on resolution rather than dispute”. 

Inevitably this paper concentrates on mediation, though we will comment briefly on other types of dispute resolution by way of comparison with our direct experience of the mediation process.   Indeed, with the growth of mediation in the clinical sector initially promoted by NHS Resolution’s mediation scheme, judicial orders to mediate seem unlikely to be encountered in any except the most obviously intransigent refusal to mediate a clinical claim.

Contrasted with views widely held about mediation twenty years ago, it is no longer seen as a sign of weakness to propose or agree to mediate.  Mediation is rapidly becoming an integral part of the civil justice system, adopted voluntarily because of its perceived value to disputants as a process, and Sir Geoffrey Vos MR’s view is becoming a reality, not least in clinical claims.  But as this paper will explain, we do not think that mediation processes are used often enough, early enough, or widely enough in order to secure better and earlier resolution of clinical mishaps.

Section B.   Has the NHS Mediation Scheme been a Success?

It would be surprising if panel mediators answered No, as we have obviously been busily mediating with claimants and defendants through the NHS Scheme for the last five or so years.  But the opinions that matter most are those of the users, both claimants and defendants.  In fact, our firm view is that it has fully justified the initiative fostered by NHS Resolution, but the concept of “success” needs analysis into a number of different aspects, which we look at below.

A Successful Overall Structure Preserving Mediator Neutrality

As mediators, we firmly proclaim and adhere to the fact that we are neutrals and independent of pressure from either claimant or defendant.  We are on a panel set up by CEDR and have to meet exacting standards of experience and skill to be appointed and remain members.  We are not NHS Resolution or AvMA/APIL mediators but CEDR mediators and subject to CEDR’s oversight.  Very wisely NHS Resolution has structured the scheme so as to hire in panels of qualified mediators from independent organisations (currently CEDR, Trust Mediation, plus Costs ADR and St John’s Chambers dealing only with costs issues).  This, we feel, generates a sense of independence and neutrality for the mediators so far as possible.

We are also subject to a relatively small and sophisticated market-place, and we expect the claimant and defendant market to require and ensure that we do remain truly independent and neutral as between parties.  Indeed, we welcome being able to escape the pressures of partisanship and the responsibilities placed on those who advise on substantive matters, and we greatly value the presence at mediations of able claimant and defendant lawyers to take on those responsibilities.  We are happy to set up and manage a good process and to advise on process options but very content to leave assessment of risks and prospects of success to each legal team.

In terms of our mediation practice, we usually do not know whether our fees are to be funded on a shared basis between claimant and defendant, or whether NHS Resolution has accepted responsibility for the whole of the costs of mediation.  Either way it makes no difference to our approach or commitment to all parties.  Furthermore, whichever it may be, we ourselves always render our invoices to CEDR and are paid by CEDR, and not direct by NHS Resolution.  This too helps to preserve our sense of independence.

Success in Universality of Use

Is mediation useful in any type of case, or is its usefulness limited?  Although the initial pilot scheme in 2014-15 was theoretically aimed at lower value cases – fatal claims relating to children and elderly patients, and modest quantum only claims, the pilot was rapidly extended to higher value and more complex cases, and there have been no qualifications placed on cases to be mediated in the permanent scheme.

We can now point to the fact that every kind of complex claim has now settled at scheme mediations (including cerebral palsy and brain injury claims) even where breach of duty and major issues of causation have been in dispute.

High value settlements, some in excess of £20 million in capital value, have emerged, with periodical payments and provisional damages negotiated.  A number of very high value ones where breach of duty was in issue and which could not be valued at the time of mediation have been settled at mediation by agreeing percentage of future quantum as eventually assessed or agreed.  So, we can say firmly that there is in truth no type of clinical negligence claim which is unsuited to mediation at some stage in its life.

Success in Involving Experienced Clinical Negligence Lawyers and NHS Trusts

In this relatively small and specialised legal sector, the penetration of mediation has been extensive and the accumulated experience by practitioners substantial.  Without actually enumerating the precise numbers, we find that we have mediated cases with a considerable number of law firms and counsel in this relatively small and highly specialised sector, often multiple times.

Each of us has appeared to be nominated by both claimant and defendant firms separately or jointly.  We have seen extremely competent representation of clients by lawyers who have become rapidly attuned to the demands and opportunities offered by the mediation process.

Success in Generating Earlier Settlements

Mediations have been increasingly convened earlier in the claims process. Again, NHS Resolution may have fuller figures, but anecdotally, we have all observed in recent years a marked increase in mediations which are convened before issue of proceedings or at least before the first Costs and Case Management Conference (CCMC), for some of us approaching 50% of our caseload.

One of the advantages of a specialist sector is the accumulated wisdom of lawyers who can safely advise clients over prospects of success (or not) early in the life of a claim and form a sound view of its settlement value.

Early settlement on a properly considered basis relieves both claimants and clinicians from prolonged involvement in litigation, offering an earlier escape from the worries and demands that litigation brings.

Few if any lay parties at our mediations have not expressed relief that a claim has been resolved and a degree of regret that it could not have been resolved earlier.  It secures the extra-legal benefits set out below more quickly and thus perhaps more convincingly, increasing client satisfaction.  It enables lawyers on both sides to move on to the rest of their caseload.

For the NHS as a whole, it will or should reduce the overall cost of claims, while still properly meeting its responsibilities to those who have received sub-standard care.

Success in Saving Time and Cost

Benchmarking costs savings precisely in each case is a difficult and speculative exercise, as comparison with the cost of going to trial is really not appropriate, as so few cases travel that far.

So, comparison in costs has to be made between when settlement was achieved and when it might otherwise have been achieved (if at all).  NHS Resolution will undoubtedly have built up a model to assist with such assessment.  Common sense suggests that the earlier claims are settled the less they will cost in terms of fees for lawyers, expert witnesses and court fees.

For instance, every substantial case settled before issue of proceedings additionally avoids payment of a £10,000 court fee on the claim form, very often ultimately payable out of NHS funds as part of settlement costs.  Earlier settlement for claimant firms means improved cashflow by shortening the time between being instructed and being paid, time to devote to other cases and generating overall improved efficiencies.  Where settlement is achieved before issue, there is consequently no need to fund heavy court fees.

Success in Achieving Financial Settlements

As to whether settlement is achieved, the latest statistics published by NHS Resolution suggest that 77% of mediated cases settle on or within 28 days of mediation.  CEDR mediators follow up unsettled cases over longer periods, and many more will settle before trial, often as a direct result of what emerged at the mediation.  So, mediation appears to be effective in achieving resolution of clinical disputes of all sizes and types.

Settlement does not mean payment of claims in full.  The advantage of mediation is the opportunity it gives to each party to build in its appraisal of risks in the event of not achieving its best case at trial.  Settlement then emerges at a figure which a judge would never award (as trial usually produces a winner and loser), but which both parties feel represents a fair and acceptable outcome which properly reflects the strengths and weaknesses in each party’s case.  Settlements are usually at a figure a long way from either the claimant schedule or the defendant’s counter-schedule.

However, it should never be surprising that a reasonably small proportion of mediations do not lead to settlement.  Parties and their experts can disagree significantly over issues which in the end require a judge to decide between them.  What we as mediators strive to deliver is the best possible opportunity for parties to debate their differences and to give settlement the best possible chance of being chosen on terms which emerge.

It is never our job to press parties to settle.  On the contrary, we find ourselves reassuring them that they cannot be criticised at trial for declining to settle at a mediation or be accused of unreasonably failing to offer or accept what an opponent proposed.  We are actually relieved that we cannot be accused of frogmarching parties into deals against their will or the advice of their legal team. However, mediation also offers the opportunity for a claimant to decide to accept “a bird in the hand” and to escape from the strain and uncertainty of litigation, although always with the benefit of expert advice as to prospects of success.

Success in Dealing with Denials of Liability

NHS Resolution has always considered it a proper use of mediation to sit down with claimants to try to persuade them and their advisers that their case will not succeed and should be discontinued.  We have all mediated a number of cases premised on this basis, and while claimants rarely submit to such persuasion, we have each experienced very occasional withdrawals of a claim at or as a result of a mediation.

While it can feel disappointing to manage a process unlikely to lead to settlement, we accept the appropriateness of this approach, especially if used early in the life of a claim; and so long as the defendants carefully signal in advance that they may not make an offer and attend with an open mind, indicating clearly their readiness to listen to contrary views.  Importantly, we also all have experience of the defendants being persuaded to change their mind about their initial optimism over defeating a claim at trial and deciding to make offers which very often lead to consensual settlement at a great deal more than zero.

Success in Delivering Extra-Legal Benefits

We firmly argue that success is not just about outcomes, but also the value conferred by participation in the process.  NHS Resolution’s Framework Document has always emphasised that it has responsibilities not just to Trusts and clinicians but patients and the public.  Its latest iteration in January 2021 spells this out as follows:

6.1         The Department [of Health and Social Care] and NHS Resolution will work together, and with the Department’s other arm’s length bodies, in the interests of patients, people who use services and the public to maximise the health and wellbeing gain for the population, working to the values set out in the NHS Constitution.

6.2       To support the development of this relationship, the Department and NHS Resolution have agreed to a set of shared principles:

• Working together for patients, people who use services and the public, demonstrating our commitment to the values of the NHS set out in its Constitution…

This would contrast starkly with any comparable document produced by a commercial insurer or even a mutual healthcare indemnifier whose main preoccupation is with its shareholders or members.

So, NHS Resolution shoulders a duty to the NHS’s patients when it comes to handling claims.  This must go to the way they handle claims as well.

One of the features of mediation which seems to have attracted NHS Resolution into setting up the mediation pilot and then the permanent scheme is the way that the process can open communication between dissatisfied patients and the NHS and seek to restore and improve the inevitable relationship between the whole of society and the NHS.

This is best emphasised by the NHS Resolution Report published in February 2020 entitled Mediation in Healthcare Claims- an Evaluation.  Significant points made in its Executive Summary include:

• Time can be spent listening and responding to the particular concerns of a patient and their family. The process provides a platform to claimants, patients and their families to articulate concerns that would not ordinarily be addressed in other forms of ADR[1].
• Positive and compelling feedback has been received from participants of the process and there is a heightened awareness of the benefits of mediation for claims resolution and demand for its use by members and other stakeholders.
• There is overwhelming evidence of the benefits of mediation, for patients, families and NHS staff.

From our experience, the process has time and again provided the opportunity for claimants and their families to express their feelings (which so often underpin their motivation in making a formal claim) openly and frankly; to hear open and honest responses and apologies from the Trust involved, and explanations of changes in practice which derive directly as lessons learned from what happened in each case.

Pictures and videos are shown by families of deceased loved ones to bring them into the centre of thinking.  Time and again we have seen people value the opportunity for meeting and exchanging views, finding it possible to move from confrontation to reconciliation.  Mediation provides a guaranteed “day in court”, but not one hedged about with procedural technicality, court-room formality and rules of evidence.

Conversely, with the tiny number of clinical trials, no claimant can be promised a “day in court” there.  Even if trial is reached, claimants may not be called to give evidence, or (if they are) will be essentially tied to their written evidence, with their time in the witness box mostly given over to challenge by opposing counsel.  At a mediation claimants and clinicians can say what they wish directly, with a neutral chair and safe process making this possible, and as a result both can feel that they have been properly heard.

Mediation can be especially effective when the defendant Trust is fully represented by clinicians who either were directly involved with what is said to have gone wrong, or who now have clinical and managerial responsibility for the department concerned, and who can convincingly deal with how lessons have been learned which might make a repetition less likely.

We have seen very searching debates between bereaved families and Trusts over changes in procedure to reduce future risks.  We have seen a mother’s misconceptions over her own possible responsibility for her child’s birth damage dissipated after eight years of guilt.  We have seen consultants offer to take accept a lead role for future pregnancy following a negligently caused stillbirth.

The wisdom and acceptability of clinicians attending needs to be carefully considered case by case, as there will be cases where the last person that a claimant wants to see is the allegedly negligent clinician.  But we as mediators are used to exploring such issues and advising on process in advance, given that we can have confidential conversations with each team before the mediation day.

We have seen imaginative outcomes negotiated, with claimants and families willing to assist Trusts and NHS Safety and Learning with  dissemination of patient experience arising from claims and with further learning of lessons.  We have seen families committing to fund-raising for Trusts, and to setting up charities to enhance and augment Trust services.  We could recount many such stories.

Above all, mediation suddenly offers the prospect of a respectful closure for everyone involved in an often painful or tragic set of circumstances.  At least (and, very often, at last!) the litigation process ends, and life can resume without the stresses that claims and defences can impose.

A Successful Process

We feel strongly that much of the benefit of mediation is derived from the process itself.  It is highly flexible, which means that it can be structured entirely to suit the needs and sensitivities of those attending.  We have conducted “successful” mediations entirely in joint meetings and also where the parties do not meet, and the mediator moves from room to room.

However, mediations usually involve a mix of joint and private meetings, agreed with the parties as the process unfolds.  The mediator can add considerable value by taking responsibility for management of the process off the parties, advising, consulting and seeking consensus on next steps and ensuring that the process is fair and everyone has time to anticipate and prepare for next steps.

Mediators can also “coach” the negotiations, based on what they are privileged to learn from private meetings with each party, helping parties to define just how far they might be prepared to move to achieve finality, without ever compelling settlement.

The confidentiality of the process set up by the mediation agreement gives everyone a sense of security and freedom to be frank, reassured that if settlement is not reached, what has been said remains off the record for all purposes.  Yet the removal of any constraint on disclosure of the outcome where a case is settled frees claimants from feeling gagged by the process and frees the NHS to share learning.

We also suggest that the patience and persistence we aspire to bring to each mediation gives the parties the best chance to achieve whatever they might regard as a successful outcome.  Lawyer “grandstanding” and “walkouts” are extremely rare at mediations.  The moderating presence of a neutral mediator discourages these and (more positively) we are able to keep mediations going until they reach an agreed outcome, often much to the surprise of the parties, one or both of whom might well have marched out of a different type of settlement meeting.

Time and again we are told by lawyers that they had never expected a settlement to emerge in a given case, yet are pleased that it did and satisfied (as are their clients) with the terms agreed.  Where settlement terms do not emerge at mediations, we all offer to intervene and follow up after the mediation day, and these interventions frequently lead to later settlement as perspectives shift on reflection.  Our involvement is dynamic, as is the process.

Success in Developing Online Mediation

Whereas none of us would have felt comfortable about mediating online before the Covid pandemic, we have been surprised and pleased with how effective online mediations have proved.  Despite the necessity of developing its use, online mediation has been a surprising success.  Claimants have contributed movingly from their own homes without the extra strains of travelling to a more formal settling and been able to take breaks in familiar surroundings.

Those with disabilities have not been compelled to travel.  Distantly located family members have been able to offer support from afar.  Maybe the distancing has enabled parties to engage with less embarrassment.  It has also been possible for clinicians, and Trust and NHS Resolution staff to attend remotely for defined periods, whereas taking a full day out for a mediation (including travel there and back) would have been very challenging.  Fuller exchanges between claimant and defendant teams have thus been possible.

Travel times and costs have been largely eliminated.  We suspect that online processes will continue to be used to a varying extent after the end of lockdown.

Success – In Summary

Overall, it is the sense of security engendered by the mediation process, when run by a mediator seen to be trustworthy, neutral and fair, which allows patients and their families and NHS clinicians and staff to feel able to contribute so freely and is the basis of its success.  At its very lowest, we believe that mediation does not make things worse!   On the contrary, because it creates a safe and confidential environment for honest and realistic debate without adverse consequence if litigation has to continue, it gives the best possible chance for consensual settlement.

Section C.   Settling in Other Ways

Mediation is never going to be deployed in every clinical case, even if it is universally suitable in theory.  It comes with its own costs attached, especially the mediator’s fee and the legal costs of each team in preparing for and attending what can be a full and demanding day.   Much may depend on the seriousness of the facts of the case, and the level of need to deal with the case sensitively at an emotional level, which is not normally a consideration in deploying the litigation process.

Fatal claims involving children and the elderly may not be of high value but they will inevitably generate high emotion.   But claims will still be settled by correspondence, telephone discussions between claimant and defendant lawyers and NHS Resolution, or even by the rather more threatening procedure of Part 36 offers.  We add some comments about the other main processes for resolving clinical disputes from the mediator’s perspective, contrasting each process briefly with mediation:

Arbitration and Court Trial

If parties merely want or need a rights-based decision, based on a retrospective review of the facts, then either of these adjudicative processes offer that.  Court trial is public and is rarely reached in clinical claims (less than 1% of claims go that far).   It is never reached quickly in clinical claims.  As to arbitration, it is private, arguably quicker and possibly therefore costs less, though the arbitrator is paid directly rather than through court fees.  But both involve third party rulings as to the outcome, which can only be legally based.  They deprive lay parties of control, let alone the opportunity for personal participation or direct inter-communication, and also the possibility of a solution which occupies the risk-discounted middle ground.  Adjudication means “win/lose”.

Neutral Evaluation

This connotes a neutral non-binding assessment on the merits of an issue or issues by a neutral or possibly a judge.  Its initial acronym was ENE (early neutral evaluation) and might perhaps be used early in the life of a dispute if the parties fully disclose to the evaluator all the evidence that a judge might see to decide a trial.  However, this is very difficult, as the assembly of lay and especially expert evidence to that level of completeness takes a long time in clinical claims.  So, evaluation is not really available “early”.

If utilised later in a claim, when all or substantially all evidence is complete, as the costs savings is more limited to the  the costs of trial and the evaluator’s fee, plus additional costs generated by implementation of, or argument about, whether the evaluation is acceptable.

It differs from mediation in that it remains essentially an adversarial process, with each side arguing their best case and hoping to persuade the evaluator, whether private or judicial, to “find” for them.  It remains just as rights-based and retrospective in approach as trial or adjudication, even if advisory and not binding, and does not have the space to consider or deliver extra-legal benefits in either the process or outcome.  Again, there is no opportunity for participation or inter-communication between lay parties.  If dissatisfied with the evaluation, each side (or both) can opt to continue with litigation.  It may even require a mediation to sort out the consequences of the evaluation.

Round Table Meetings (RTMs)

These are the main non-adjudicative process used in clinical claims in cases where straight negotiation or acceptance of a Part 36 offer do not lead to settlement.  Full legal teams assemble for a without prejudice discussion in person or on-line, without a neutral to run the process.  Claimants may attend to give instructions but, at least anecdotally, take little if any part in the joint meetings between the legal teams.

Nothing prevents them from doing so, but although privilege applies as to a later trial, there nothing equivalent to a mediation agreement is signed which clothes the whole discussion in global confidentiality and required the certainty of signed written terms for the outcome to be binding.

Nor do the parties access the benefit of there being a neutral who spends confidential time with each team in private meetings and can thus help to steer the process constructively and add value to decisions during the negotiations as to what might and might not be acceptable, always subject to the confidentiality which applies to such separate private meetings.  Interestingly, these fall outside the definition of ADR used by the CJC report on compulsory ADR, which covers only:

any dispute resolution technique in which the parties are assisted in exploring a settlement by a third party, whether an agent external to the court process (e.g., a mediator) or a judge playing a non-adjudicative role.

RTMs are in truth simply a slightly elaborated form of “without prejudice” bilateral settlement negotiation.  There is no mediation agreement to create an additional layer of confidentiality, nor the requirement for settlement terms only to be binding when in writing signed by the parties.  Nor is there a neutral chair to minimise bluff and grandstanding which can typify positional bargaining.  No one stands by the exit to check privately with each party, especially the lay parties as opposed to the lawyers, where their true interests lie.

Section D.   What can be Learned from the Success of Mediation?

 The huge perceived problem of the cost of clinical claims remains and grows.  Short of root and branch legal reforms such as the introduction of no-fault compensation, caps on damages or tight limitation on legal costs, all of which will take legislative time and face considerable opposition, short to medium term planning requires attention to making improvements in the existing claims structure by both claimants and defendants.

As we see it, there are four main areas in which further or different deployment of mediation could contribute positively:

• Dealing with complaints better, so as to reduce the number of claims
• How to mediate cases earlier (and thus reduce time, cost and strain for claimants and Trust staff;
• Improving the way mediations are currently run;
• Making special arrangements for serious birth defect and other major claims.

We deal with each of these in turn.

Dealing with Complaints Better 

We have all heard the refrain at a mediation “if only this had been handled better at the outset, I would never have made a claim”.  As Helen Vernon, CEO of NHS Resolution put it in its 2019-2020 Annual Report:

The response when things do not go as planned, if not handled well, may be a significant driver to bringing a claim against the NHS and leave a legacy of additional harm to both patients and healthcare staff.

Even with the duty of candour, it seems that Trusts often still find it hard to handle complaints in a way that satisfies complainants, though of course we only see the worst instances.  We believe that a significant part of this is because of the processes chosen.   Assuming that the best way to respond to a written complaint is in writing is dangerous.

Our mediation experience suggests that direct personal contact is far better.  Even then there are choices to be made.  The video on the NHS Resolution website entitled “Christine’s story” vividly illustrates how a meeting intended to mollify a complainant can go badly wrong, driving her into choosing litigation which itself was felt by her to be unwelcome, lengthy, and impersonal – Christine herself uses the word “grotesque” of her experience.

We believe that far more use should be made of an independent neutral to chair early meetings intended to satisfy complainants in serious cases.  A process far more akin to a mediation seems to us much more likely to produce satisfaction.  It should be limited to serious clinical complaints such as are likely to have given rise to a Serious Incident investigation or Root Cause Analysis report, or an inquest.

Where an event requires such reviews by a Trust, a meeting between Trust and patient or patient family should be set up as a matter of routine, with a neutral chair from an independent provider panel selected by agreement to run the process.   The degree of confidentiality, if any, to be applied needs consideration.  It would be expected to be a lawyer-free event.  Consequently, Trusts cannot expect complainants to bind themselves not to sue.

There will be a cost (probably not onerous) in terms of a fee for the neutral panel chair, but a pilot of this approach with proper feedback sought should quickly show what patient satisfaction levels might be achieved, and whether the suggestion that claims might not follow if complaints are dealt with well holds water.

Mediating Cases Earlier 

It would obviously make sense to explore the possibility of settlement in virtually every significant case before it is issued, and the large issue fee and associated legal costs in issuing proceedings is incurred.

In our view, the machinery for doing so already exists but has yet to be fully exploited.  The Clinical Negligence Pre-Action Protocol attached to the Civil Procedure Rules 1998 is designed to maximise the possibility of pre-issue settlement, and specifically deals with ADR in that respect, once Letters of Claim and Response have been exchanged in order to define the issues.  The last two sections of the Protocol currently read as follows:

          5     Alternative dispute resolution

5.1    Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of alternative dispute resolution (‘ADR’) might enable them to resolve their dispute without commencing proceedings.

5.2    Some of the options for resolving disputes without commencing proceedings are—

            (a)            discussion and negotiation (which may or may not include making Part 36 Offers or providing an explanation and/or apology)

            (b)            mediation, a third party facilitating a resolution;

            (c)             arbitration, a third party deciding the dispute;

            (d)            early neutral evaluation, a third party giving an informed opinion on the dispute; and

            (e)             Ombudsmen schemes.

5.3    Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at— [links provided]

5.4    If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR but a party’s silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.

6    Stocktake

6.1.1    Where a dispute has not been resolved after the parties have followed the procedure set out in this Protocol, the parties should review their positions before the claimant issues court proceedings.

6.1.2   If proceedings cannot be avoided, the parties should continue to co-operate…. and should seek to prepare a chronology of events which identifies the facts or issues that are agreed and those that remain in dispute. The parties should also seek to agree the necessary procedural directions for efficient case management during the proceedings.

 An immediate reform is required by deleting the passage in bold in section 5.4.  In the light of the Civil Justice Council’s report Compulsory ADR published in July 2021, this already dubious piece of advice is now plainly wrong.

The CJC Report has stated firmly and authoritatively that courts can indeed order ADR, including mediation, without offending Article 6 of the European Convention on Human Rights.  While there is a more welcoming climate for mediation of clinical claims as a result of the NHS Resolution Scheme, the power for courts to order mediation at a first costs and case management conference, coupled with the power to impose a sanction on either or indeed both recalcitrant parties might well provoke more pre-issue mediation.

It means that NHS Resolution (and indeed claimants) can effectively insist on mediation before issue of proceedings, even if their opponent declines.  Little attempt has been made at directions hearings to ask procedural judges to penalise parties who fail to observe their obligations under the Pre-Action Protocols, but we see no reason why this cannot be sought at the first CCMC, nor have procedural judges raised such points loudly of their own initiative.  It will only take one widely reported decision to get the lawyers in this sector to fall in line.

The courts will be able to order it, with a refusing party probably risking having their case or defence struck out, or at the very least sustaining a costs sanction.

On costs sanctions generally, these are less useful where NHS defendants are not awarded costs at all under the QOCS regime, except where fundamental dishonesty or abuse of process is shown.  It is interesting to observe however that in discussing possible costs sanctions for not mediating, Jackson LJ suggested in his final report that these might include:

• reduced costs recovery for a winning party;

(b)  indemnity costs against a losing party, or

(c)  alternatively reduced costs protection for a losing party which has the benefit of qualified one-way costs shifting[2].

There is currently no relief from QOCS for declining to mediate, but QOCS is a rule-based concept, and could readily be reformed by the Rules Committee if thought desirable as a further means of meeting the Master of the Rolls’ recently expressed view that the dispute resolution process “should focus on resolution rather than dispute”.

Improving the Way Mediations are Run

Picking up from the successes outlined above, especially as to the delivery of extra-legal benefits for both claimants and clinicians, we would greatly welcome the attendance at mediations of more clinical staff to enter into conversations with claimants and their families.  When this happens it can be very moving and effective in terms of answering questions that sometimes have never been asked, let alone answered, despite the passage of years.

Quite often there will be an in-house Trust Legal Officer present, which helps if they are prepared to participate well.  By contrast, quite often a defendant Trust is represented only by counsel and solicitor, without any Trust personnel being there to demonstrate the concern for the Trust with the concerns of their patient.   It is remarkable that more claimants do not say in response to a lawyer-delivered apology “that’s all very well but the Trust couldn’t even be bothered to attend to do it in person”, and that claims still settle at mediation despite that.

In our view, Trusts should regard attendance at mediations as high priority, even for a limited time, which is something that online mediation makes entirely possible.   Mediation seeks to arrange respectful repair to the patient/healthcare provider relationship as well as settlement of any legal liability, and it is expecting a lot of the process if the right people are not there to deal with matters.

As noted above, careful advance negotiation through the mediator is needed over precisely which if any clinician might attend and for what purpose.

In particular it should not be assumed that, where breach of duty and causation have been conceded, leaving only questions of quantum to be negotiated, this somehow excuses the involvement of the Trust, who can safely leave everything to the legal team operating on NHS Resolution instructions.   This is of course a complete misreading of how claimants might well see things.

If what was done or omitted was clearly and admittedly a breach of professional duty, there is all the more need for open and full engagement to explain how it could possibly have happened, and what has been done to prevent a repetition.   We as mediators would certainly want to discuss fully in advance with party lawyers what the best approach for each mediation might be.

There will be those where the passage of time might mean that only a business negotiation is required, but where anger and guilt which underpin bereavement and physical pain and loss can so easily and quickly bubble up, we hope that our early involvement can ensure that the best choices are made in each case.

There is considerable scope for improvement in Trust performance in how their staff contribute to mediations, which should be met by specific training programmes locally in individual Trusts or at appropriate national conferences.  CEDR would be very ready to devise and provide such training, once the pressures of the pandemic have eased for Trust staff. 

Improving and Developing Mediation for Serious Birth Injury and other Catastrophic Cases 

Mediation is a highly flexible process, easily adapted from the usual one-day model into one where multiple claimants or defendants can try to find their way through complex and novel group litigation, as notably happened in the retained organs litigation in the mid-2000s.

Brain damage to children at birth leads to complex and hugely expensive claims, some of which succeed in full, some are compromised and some fail or indeed are never brought, even though the problems faced by the child and family are precisely the same.

The NHS Resolution Annual Reports and their report on their Early Notification System for Birth Trauma show that obstetric cases constitute 10% of reported cases but represent 50% of their huge annual pay-out for damages and costs.  Can mediation be usefully adapted to improve the picture in such cases?

We hope so, perhaps best by creating the possibility of earlier attention to possibly fractured relationships following a birth tragedy, and by providing a process which attends to discrete issues at the earliest possible stage.  By this means there is considerable scope for better relationships between patients and families and NHS Trusts and also for saving on legal costs by reducing the time before decisions are made.

The NHS Resolution Early Notification Scheme provides a very important basis for this thinking and all we can do is to suggest ways in which the introduction of a mediator and a process framework might allow it to work even better[3].

The broad objectives of the Early Notification Scheme require all Trusts:

to notify [NHS Resolution] of maternity incidents that have the potential to become high value claims. This will help to enable us to have the following impacts:

• Investigate potential eligibility for compensation and take proactive action to reduce legal costs and improve the experience for the family and affected staff;
• Share learning rapidly with the individual trust and the wider system in order to support safety improvement and prevent the same things happening again;
• Build on our Saying Sorry and Being Fairwork to ensure the process to obtain compensation is not a barrier to openness, candour and learning;
• Preserve evidence to ensure we are able to respond to cases that a family may choose to bring at a later date; and.
• Improve the process for obtaining compensation for families, meeting needs in real time where possible and trying to reduce the risk of claims increasing in value due to inflation or unmet needs (such as psychological support) translating into larger losses.

Their early reports suggest considerable success in beginning to tackle this huge problem.  Its ambitions are impressive, and entirely consistent with a mediation approach.

We would however suggest that it might help to introduce a neutral process management element into the scheme, to reassure families and clinicians involved that the discussions between them will be fair, safe and constructive.  This would allow for the early expression of strong feelings on both sides, always remembering that, beside the inevitable shock, anger and fear in a family of a damaged child, obstetric staff will be really upset that a child has been seriously damaged under their care.

The unavoidable relationship between the family and the NHS might be adjusted and improved at a time when communication can be very difficult between those involved.   We refer back to some of the successes of mediation identified above which we believe that we as neutrals can bring to any dispute and its possible resolution – the fact that the process is clear and safe (the extent to which it needs to be as confidential as a formal mediation needs careful thought and decision) and managed by someone experienced with dealing with such matters; and with a flexible pattern laid out for future discussion and decision-making.

We suggest that a mediation element to the ENS might look something like this:

• A birth is identified by a Trust as soon as possible postpartum as meeting the criteria for referral to the NHS Resolution under the terms of its Early Notification Scheme (i.e., assessed as hypoxic, comatose, subject to fits, requiring cooling etc.) and is sent to NHS Resolution.
• NHS Resolution accepts the referral and notifies the Trust of this: CEDR (or any other chosen provider) might also be notified of possible referral and the identity of the Trust.
• The Trust offers the mediation service to the family and if accepted by them, with permission given to disclose the family’s name and address to the approved provider, notifies the mediation provider.
• The provider sends literature and the names of possible mediators (preferably with a gender choice) to the family and Trust for choice. As the process might extend over some years, it might be wise to assign a back-up mediator to each case.
• Once appointment is agreed, the lead mediator will telephone the named contacts for the family and the Trust to see how things are at present and assess whether an early meeting is required: those conversations will be confidential to each participant
• If it is, authority for the cost of a meeting is given by the Trust after clearance from NHS Resolution. It needs decision as to whether the essential point of control is at the Trust rather than NHS Resolution, to whom the Trust will report as required to obtain authority for each step, and what part Safety and Learning might play at this stage.
• The first meeting is convened chaired by the mediator: if possible, it will be held at a neutral venue off the hospital site. Present will be family members and appropriate Trust clinical staff and the Trust liaison person responsible for setting up the mediation process.  Maybe a supporter from an organisation like PALS (if perceived as sufficiently independent) or AvMA (if they can develop the capacity) could attend, but not normally lawyers for either party.  The degree of confidentiality to be applied to these discussions will need to be established in advance and any agreement to that effect binding the family, the Trust and the mediator, and also NHS Resolution and the mediation provider, who will both sign the agreement in advance if feasible.  It will cover:
  • The current clinical situation and treatment options;
  • Current provisional prognosis and next likely steps;
  • Investigative steps required, timetabling and possible outcomes – e.g., an SI/RCA Report and how this works for the family and Trust employees;
  • An agreed broad timetable for next steps so that progress can be measured as agreed in advance, rather than allowing retrospective frustration to grow.

It will not formally determine possible legal liability, other than the need in due course for each party to take advice on this. The mediator will probably conduct much of the meeting in joint session but if either or both parties want to have a private discussion this can be done, and any such private discussions are to be confidential to the mediator and each party unless otherwise authorised, even if there is no or only limited confidentiality attaching to the overall process.

• It might be agreed that the mediator has a watching brief to check progress on delivery of a pre-agreed timetable, in which case some kind of retainer fee structure would need to be agreed: this may not be necessary in every case.
• Subsequent meetings chaired by the mediator will be as agreed and arranged through the Trust (with NHS Resolution approval), perhaps with the family (and the mediator?) also being given a point of reference at NHS Resolution in the case of disagreement over next steps at local level and the need for “appeal” or review. These will be set up to deal with identified points of difficulty between the parties.
• The lead mediator would liaise with the back-up mediator from time to time without extra cost to the scheme.
• In due course the mediation may by agreement transmute into a more usual legal event with lawyers present, under a normal mediation agreement, in order to discuss and negotiate breach of duty, causation and quantum, separately or together, and if the parties are comfortable with that, the same mediator can be used who is already entirely familiar to and trusted by the parties, or alternatively a fresh mediator might be appointed. Decisions may be staged – for instance to deal with breach only, setting an agreed percentage of whatever quantum is eventually agreed or ordered, and the amount of any interim payments of damages for rehabilitation, care, housing needs and legal costs, with finality only being achieved later when all information is in place.  The comparative roles of the local Trust and NHS Resolution at this stage need clarification, as NHS Resolution will presumably be the funder of any agreed damages, whether interim or final, under the CNST.  Further complications may arise if a tertiary level Trust is also involved in care. 

There are many matters needing to be considered.  Here are a number.

• The comparative roles and responsibilities of the Trust involved and NHS Resolution will need clear definition. Will NHS Resolution run all stages of the scheme direct, or will they only want to have a broad supervisory role in such cases?  Either might presumably be backed by conditions imposed in relation to membership of CNST.    Where will Safety and Learning fit in?
• Mediators cannot and must not give legal advice at any stage, though they might recommend that it be sought by either side. They will need to be seen to come from an independent neutral provider if they are to be trusted, and cannot simply be “NHS mediators”, “Trust mediators” or “NHS Resolution mediators”.   Obviously, NHS Trusts and NHS Resolution must have a proper say in who is used and so must the families, preferably with some kind of external “claimant side” approval, possibly from say AvMA. Lawyers who may be involved later on and those who direct parties to lawyers, such as AvMA, will need to have confidence in the mediator panel, and might well be invited to vet it for this particular application of mediation.
• Will mediators to be used be centrally provided by approved panel members from independent providers contracted to provide mediation services to NHS Resolution approved panel or will they need to be geographically convenient to the hospital where the birth injury took place? The panel mediators will need to be able to service England conveniently, as there is a possibility of a continuing casework involvement for mediators of a kind that they are not really used to.  How will that be managed?  This makes it particularly important that mediators come from a panel with more than one member, and with good geographical spread so that substitutes of similar quality can be available if needed.
• What level of confidentiality (if any) will be needed to secure open communication without damaging relationships by seeking external disclosure of discussions? Obviously, the NHS is a learning organisation, with its Safety and Learning arm, but there is the question of individual healthcare professionals to consider.  Some kind of parameters for confidentiality may need to be set and embodied in a mediation agreement.
• Good literature and video material will be needed to build confidence for families and Trusts.
• This is the kind of scheme that needs to be tried out in a pilot to see if it can work usefully as an extension of the Early Notification Scheme, maybe also co-ordinated with the work of NHS Resolution’s Safety and Learning Arm. 

There is a good case for considering ways of bringing resolution earlier into other serious clinical cases.  These are usually easily identifiable by the fact that a formal SI/RCA investigation is set up, or an inquest is ordered.

If our views about early intervention by a neutral who can ensure good communication at an early stage are right, then to have an independent chair to run duty of candour meetings and complaints meetings in such cases may well reveal whether patients and their families do indeed decide not to proceed into litigation because their concerns are felt to have been taken seriously at the outset.

Of course, no one can sign away their right to sue or accept an offer in full and final settlement of any claim without proper legal advice, so the NHS would have to see how often claims are brought after a neutrally managed complaints meeting has been convened.  But there is surely enough evidence to suggest that a pilot of independently managed early bilateral meetings by potential claimants and the Trust involved is worth exploring.

Conclusion

It is hoped that this paper may be helpful in generating creative thinking about how to build on the success of NHS Resolution’s various imaginative initiatives in improving service delivery to the patients and their families and the staff of the NHS in reducing the delays, the cost and the pain involved in clinical disputes.

This report was written by CEDR Chambers Mediators:

Tony Allen, Alan Jacobs, Neil Goodrum, Heather Allen

For CEDR Management

James South (CEO), Lauren McGuirl (Director of Commercial Disputes)

[1] By which is presumably meant round table meetings between legal teams, where claimants rarely are given a voice.  It is also hard to see how claimants could get a satisfying voice in a neutral evaluation process.

[2]   Final Report pp. 361-2 para 3.4

[3]   We understand that the Rapid Resolution and Redress scheme is no longer effectively utilised