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Greater use of mediation backed by clinical negligence lawyers

27th Oct 2016

The NHSLA has set a November deadline for mediation procurement as it looks to end what is believes is the current ‘compensation culture.’

Mediation for clinical negligence claims?

Clinical negligence lawyers have backed plans for greater use of mediation to resolve disputes after the NHS Litigation Authority (NHSLA) invited applications for the provision of its mediation services. The procurement process follows the completion of a two year pilot to test the usefulness of the mediation process. It focused specifically on fatal and elderly care claims and invited feedback from participants.

This year’s NHSLA annual report revealed that mediation was offered in 91 cases. Of the 49 that were accepted, 47 were completed. Of these, 81 per cent were settled, with 61 per cent achieved on the day of the mediation and a further 20 per cent a short time after.

Pat Hitchen, a clinical negligence solicitor & Director of Brown Turner Ross commented:

"I welcome the initiative because mediation has always had a role to play but for too long a conciliatory approach has been resisted by the NHS who, for many years have adopted a siege mentality when dealing with claims. One of the main problems with the current climate is that the starting position for the NHSLA is too often to deny liability and then drag proceedings out in the hope that the claimant will simply give up. Costs therefore escalate and attitudes harden which is unhelpful. Thankfully, we have been seeing a more constructive approach recently with admissions being made sometimes upon receipt of a fully particularised letter of claim. 

Mediation means that the parties become more pro-active in terms of establishing common ground & achieving a resolution of the dispute. Turning to Mediation quickly makes the claimant feel that they are being taken seriously and that the NHS genuinely wants to understand their grievance and find a solution. 

Doctors may find it helpful to engage in a process that is confidential and away from public scrutiny. If mediation is successful a confidentiality clause can be inserted in any agreement. Court proceedings in their current format are a very expensive and time consuming way to conduct litigation. While I welcome this proposal it is essential that the claimant still has unrestricted access to all records & evidence before engaging in the process. Resolving liability should be the issue to resolve leaving the valuation of the claim as something to deal with thereafter.’

If you have been the victim of clinical negligence call Pat for Free initial advice on 0800 195 7517