The NHS Litigation Authority’s mediation service will work best when claimants are legally represented.
At the start of this month, the NHS Litigation Authority launched its new mediation service for resolving disputes. The authority said the launch follows a ‘successful’ pilot of the scheme since July 2014, in suitable cases involving fatality or elderly care. These tend to be at the lower end of the financial spectrum.
The NHSLA has appointed a panel of reputable, independent mediators to carry out the service.
Announcing the scheme’s launch, chief executive Helen Vernon noted that: ‘Mediation is an excellent forum for dispute resolution and provides injured patients and their families with an opportunity for face-to-face explanations and apologies when things go wrong, and reducing the need for unnecessary litigation’.
Most lawyers broadly support the concept of mediation – it is certainly faster than the courts, and it is also more cost effective, particularly given the disgraceful rises in court fees.
But is it suitable for clinical negligence claims?
I’d say that depends on two factors: the type of claim, and whether you have a lawyer present.
When something goes wrong for patients, they are not always looking for a payout. What people often want is an acknowledgement from the professionals concerned that mistakes were made; an apology, and most importantly an assurance that procedures will be changed so that the same avoidable misery is not inflicted on anyone else.
In this sort of situation, it is easy to see how mediation can help, by giving the patient the chance to speak directly to the professionals concerned – and providing a space in which the NHS can be open and honest.
But sometimes explanations and assurances are not enough, because the patient has been left with care needs and expenses, past and future, and they need a financial settlement to meet these. In this situation, mediation may still be a good option for the patient – but never without a lawyer.
If individual patients end up negotiating future care costs on their own, with an experienced NHSLA negotiator on the other side of the table, this is quite obviously going to lead to unfair outcomes.
True, there will be an independent mediator present. But the mediator is there to facilitate agreement, not to decide what that agreement should be. They are not a judge.
If a mediation ends in an agreement, it will be a statistical success, even if the patient later comes to regret the deal they made.
To be clear, there is nothing in the NHS mediation scheme to prevent parties from having a lawyer with them. But the question is whether patients will realise that they need one.
It is interesting that an NHS leaflet from July 2014 explaining how NHS mediation works states in its introduction that ‘the service will include access to an independent and accredited mediator’.
In the section addressing ‘Who attends’, it says that ‘Often the claimant and/or family members or a friend to provide support will attend in person.’
In the final line, it says ‘Many people choose to have a lawyer attend the mediation with them however this is not obligatory.’
Many patients may consider that they can manage without a lawyer, without fully realising the full extent of their injuries, or how much their injuries will end up costing them in the future.
If they don’t sign any agreement, their right to litigate through the courts in unaffected.
But if the mediation ‘succeeds’, the patient will enter into a binding agreement. Best to have their own lawyer by their side before they sign on the dotted line.
Rachel Rothwell is editor of Litigation Funding magazine
Follow Rachel on Twitter: @LawJourno