Writing in Clerksroom Mediation’s inaugural “Mediation Bulletin”, David Carey draws attention to NHS Resolution’s Annual Report for 2016/17 which shows that only 121 claims for clinical negligence were resolved by way of trial and that 17,217 claims were resolved other than by trial. Dr Carey’s article explores the extent to which the NHS Resolution Mediation Programme has contributed to settlement numbers. He is disappointed to find, in response to his FOI request, that in the period 05.12.16 to 31.03.18 only 209 claims were mediated of which 80% or 163 were successfully mediated. I explain below why this author believes that is all about to change.
Leaving to one side the objections of adjudication romantics such as Hazel Genn the tide seems to be flowing in the direction of mediation as the way to reduce cost and earlier payment of compensation for the victims of clinical negligence.
The NHS Resolution scheme was praised by the Civil Justice Council in its recent Final Report (November 2018) on ADR:
“The [NHS Resolution] scheme therefore goes some way to resolving the funding issue and ensures that a trusted, quality‐assured cohort of mediators is available. The services are already proving successful”. (para. 5.7, p 25)
A closer reading of that Report reveals the direction of travel is toward quasi-mandatory exhortation similar to the requirements of the pre-action protocol for low value claims in road traffic accidents which every year sees 400,000 claims using a settlement process known as the Claims Portal. The CJC ADR Report also recommends a much narrower set of opt-outs from ADR for those bringing civil claims. An idea directly flowing from the Civil Mediation Council’s submission (para 8.24).
It is highly likely, I believe, that these submissions and recommendations will be introduced into the Civil Procedure Rules by the Civil Procedure Rules Committee (CPRC) in the near future. In which case there should be a lot more mediation in the near future.
The Public Accounts Committee of the House of Commons (PAC) conducted an inquiry into the rising costs of clinical negligence claims (a trend noted in Dr Carey’s article) and concluded:
“Recommendation: The Department, the Ministry of Justice, and NHS Resolution must take urgent and coordinated action to address the rising costs of clinical negligence. This includes:
……appraising further measures to reduce the legal costs of claims, for example whether mediation should be mandated for certain types of claims.”
On 8 August 2018 the author attended a meeting at the Department of Health to explore issues related to the Department’s response to the PAC. During a constructive meeting it became clear that one of the proposals under consideration was the expansion of the NHS Resolution mediation programme.
This is all good for mediation and mediators of course but is the infrastructure in place to support expansion?
One of the main concerns about greater roll-out of mediation is the availability of appropriately qualified mediators. Tim Wallis of Trust Mediation has been working pro bono as a consultant in setting up the APIL, FOIL, and MASS register of appropriately experienced personal injury and clinical negligence mediators. This could help meet the challenge around the supply of appropriately qualified mediators.
More mediations need more mediators but increased volumes cannot be managed without a secure, faster system using a Cloud based platform enabling mediations to be conducted securely and speedily. NHS Resolution recognised this when it recently authorised Trust Mediation to trial the use of the new Platform built by DisputesEfiling.com for the NHS mediation programme (link below). This Pilot has attracted the support of leading Claimant and Defendant firms.
At present the requirements of GDPR are being met by individual law firms using extranets but this fails when both sides try to collaborate because neither side trust the other’s system. Thus leaving mediations being conducted traditionally with lever arches of medical records and other documents sent by post, DX or, worse, unencrypted email. Traditional methods are sub-optimal from a GDPR perspective. Some mediators have developed solutions using, for example, Office 365 but that is clumsy, insecure and needs significant work (and time) to adapt to the task.
DisputesEfiling.com’s new system fills this void with a bespoke solution. This Platform is independent and, crucially, perceived to be neutral by the Profession. It can facilitate all the principal forms of ADR online together with a module enabling pre-action protocol work (in which significant numbers of cases can be settled). The Platform immediately increases the capacity of mediators to handle more mediations. The costs savings for parties and insurers are significant.
Insurers usually pay the costs and therefore stand to gain much by using the Platform. Especially those insurers providing After the Event Legal Expenses insurance. In this context such gains can be magnified several times if ATE policies include the requirement to mediate and use a neutral, GDPR compliant Cloud based system for running those mediations.
Initiatives such as those described above mean that if the incoming wave of mediation is not yet at the flood that wave can only swell.
TONY N GUISE
Tony is the Director of DisputesEfiling.com Limited the provider of online ADR platforms and a Past President of the London Solicitors Litigation Association.
About Tony N Guise:
Tony is the Director of DisputesEfiling.com Limited the provider of online ADR platforms and a Past President of the London Solicitors Litigation Association. An abridged version of this article first appeared on the Hunt ADR Blog.
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