Clinical negligence lawyers turn to ADR

Clinical negligence specialists have received funding to pilot a mediation model amid claims from MPs that there is a 'clear failure' in the system.

The joint project is between the National Health Service Litigation Authority (NHSLA), the Centre for Effective Dispute Resolution (CEDR) and Action for Victims of Medical Accidents (AVMA).

It has received 15,000 from the Legal Services Commission to conduct the five-month pilot.

The news follows a House of Commons public accounts committee (PAC) report which found that claims take an average of five years to conclude; 8% take ten years or more.

In two-thirds of cases worth less than 50,000, the patient's costs exceed the damages.

The NHSLA and AVMA initiated the project with the aim of bringing together claimant and defendant representatives; CEDR was brought in to help training.

The initiative hopes to establish a panel of clinical negligence mediators, pilot a non-binding neutral assessment of cases to advise on their suitability for mediation, and develop mediation training for claimant and defendant lawyers.

Tony Allen, a CEDR director, said: 'This integrated approach - bringing together representatives of claimants, defendants and practitioners - will ensure that all involved can access the best mediators in this field.'

David Marshall, vice-president of the Association of Personal Injury Lawyers, said: 'We have been invited to participate and we will do so.

I think that mediation and ADR definitely has a role in clinical disputes and it's important to make sure that it's developed in the best way, so this is a very good project.'

The PAC also found that 70% of claims are now legally aided, but the increased use conditional fee agreements (CFAs) to make up the shortfall may be hindering access to justice because solicitors are reluctant to take on risky claims.

But in many cases victims were 'cornered' into litigation even though other remedies such as an apology may have been appropriate.

The committee suggested that a no-blame solution should be considered, along with alternative ways of dealing with smaller claims.

Mr Marshall said the report was 'level-headed and sensible', particularly on the limitations of CFAs.

'No one wants to take on an unmeritorious claim, but even with a case that has a 60% chance of success you will have trouble finding a lawyer because costs can be enormous and insurance expensive,' he said.