12 March, 2020
Mediation is a way to resolve clinical negligence and personal injury claims without the delays of a trial, cost, uncertainty and stress of going to court. It is increasingly used in clinical negligence cases to narrow the issues or resolve the case.
With a trend towards this type of resolution it seems a good opportunity to explore the topic.
If you have suffered as a result of a clinical negligence at an NHS hospital, the matter will be dealt with on their behalf by NHS Resolutions (formerly NHS Litigation Authority). One of their main functions is to manage the costs that arise when things go wrong, work to compensate for negligent care and resolve concerns and disputes.
Their new claims mediation service has been designed to support patients, families and NHS staff in working together towards the resolution of incidents, complaints, legal claims and cost disputes, avoiding the unnecessary expense, time, stress and potential emotional distress of going to court.
Here at Forbes, we are seeing more and more clinical negligence cases being dealt with by mediation. NHS Resolutions report that where appropriate they participate in mediation or other forms of alternative dispute resolution as a means of resolving concerns fairly.
Mediation involves an independent third party, a mediator, who helps both parties work toward a mutually acceptable agreement of a dispute, which can include agreeing a settlement amount or the NHS providing an apology. If no agreement is reached, the litigation process continues. If an agreement is reached, a Consent Order will be drafted. Mediation is voluntary, but a trial should be always be the last resort. As with any dispute resolution, there are pros and cons.
Trust Mediation reports that since 2008, on average 80-90% of cases which are referred to them are settled. Even if mediation is unsuccessful, it may resolve some of the issues in the claim.
Mediation is also private and confidential, and it is more of an informal process.
Although some people dread the thought of going to court, some want their day in court so that they are heard and with the belief that something positive or a change in protocol will come out of it. In reality this is not the case. The NHS strive to learn from their mistakes, where the case goes to trial or settled at mediation.
A JSM is a meeting to discuss a claim with a view to achieving a settlement. It differs to mediation, in that there is no mediator there. Instead, each party have their own room and can propose settlements until one is reached. Once there is an agreement, a Consent Order will be drafted.
If no agreement is reached, the litigation process continues.
Arbitration is where an independent arbitrator or panel of independent arbitrators is appointed by the parties to make a binding decision which is final. There is limited ground to appeal a decision by the arbitrator.
If you have received any medical treatment, which you believe fell below the standard of care and would like to discuss the matter further, please do get in touch with our specialist clinical negligence team on 01254 872111.
For more information contact John Bennett in our Clinical Negligence department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.