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To read the full article about all of the developments please click here 1,100 and counting – the rise of dispute resolution – DAS Insurance

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David will have a central role in assisting Trust Mediation extend their mediation, neutral evaluation offering. He is already approved by NHS Resolution to mediate claims brought against the NHS.

Trust Mediation provides mediation services in a variety of sectors including Clinical Negligence via a group of specialist, independent mediators who are all recognised practitioners in their own right.  Increasingly, Trust Mediation is also now being asked to supply mediators specialising in other areas of mediation and dispute resolution such as neutral evaluation.

David Pittaway KC says “I am delighted to be joining the Trust Mediation team. Having spent many years in an adversarial role as a KC, I welcome the opportunity to use my skills to resolve disputes without a trial, by sitting as an arbitrator, mediator or evaluator.  Neutral evaluation is a growth area and my role at Trust Mediation will allow me to raise awareness of this new and very effective form of dispute resolution.”

Tim Wallis, Director of Trust Mediation adds “We are all thrilled that David has decided to join us as we believe that his experience in Dispute Resolution and neutral evaluation in particular will make him an invaluable addition to our team.”

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Trust Mediation founding member, Tim Wallis says “Delays of this nature cause real problems to everyone involved in the claims process.  From the claimant’s perspective, the claims process that is already seen as slow is extended even further, and claimants now have to wait even longer to be put back in the financial position they were in before the negligent act.  The impact of being involved in litigation is not only financial, as it can be very stressful and further delays can cause additional harm. Often claimants will not feel they’ve had closure and be able to get on with their lives until the claim is resolved.

From the defendant’s perspective, additional delays mean that their overall outlay will be increased, and as the defendant will often bear both parties’ costs, this will be a double hit for insurers and defence organisations. Moreover, there is a further negative economic impact because organisations such as insurers are required to keep money locked up in reserves until a claim is concluded. There may also be reputational risk for the defendant from the extended delays, as the claimant may associate the payment delays with them and not the court.”

What can all parties and their lawyers do about the delays?

Firms can use traditional negotiation skills to settle claims without resorting to proceedings and in fact, the vast majority of cases settle in this way. For cases that are not resolved in that way, mediation or some other form of ADR can help.

What types of cases are suitable for mediation?

• Cases where the parties and their lawyers have reached impasse. Trust Mediation deals with many personal injury and clinical negligence cases in this category and the process of mediation is effective at moving through an impasse.
• Cases where the parties are far apart on liability, causation and or quantum. The courts have frequently stated that although it may feel counter-intuitive to mediate in these circumstances, (“We’re so far apart that any further discussion would be hopeless”) the fact the parties views diverge so much is a strong indicator for mediation. One of the parties may be wrong in their opinion, or it may be a case where the risks are finely balanced. Either way, a skilled neutral can work with the parties’ lawyers forensically to review these matters, negotiate and reach settlement.
• Cases where a joint settlement meeting has taken place, but settlement has not been reached. Trust Mediation is often instructed in these circumstances.
• Cases which should have settled but have not. There is usually a reason for the fact that it has not settled, such as a difficult or over-optimistic claimant or defendant, or a deterioration of the lawyers’ relationship. A neutral mediator often becomes a catalyst in reaching settlement of such cases.
• Cases where there are two or more defendants. In addition to the claimant v defendant dispute there is often a second dispute between the defendants. Mediation is effective in these cases and invariably settlement is reached.

What are the benefits of Mediation?

• Mediation is an effective settlement tool. Trust Mediation usually sees a settlement in 80% or more of cases where it is instructed. This ratio is quite high bearing in mind that many cases are of the type described in the examples above, and in some cases a defendant will use mediation to explain (having given advance notice of this to the claimant) the reasons why it has reached the view that there is no liability.
• Mediation is an early settlement tool. This is demonstrated by the fact that over 50% of Trust Mediation’s clinical negligence cases are mediated before court proceedings are started.
• It is not necessary to have a trial bundle to settle a claim. Complex cases can be mediated early; for example, if pleadings are required for the mediation, draft pleadings can be prepared without the cost of issuing proceedings.
• Mediation is the appropriate process where:
  • Claimants wish to be personally involved in the resolution of the claim and have their voices heard.the claim involves a high degree of emotion or
  • it is a multi-party case.

Despite the clear benefits of mediation, there does still appear to be some reluctance to mediate, however, the scope for resisting mediation continues to reduce significantly. The courts encourage mediation and are now prepared to order a stay for mediation against the wishes of one or both parties. (See Abdel-Kader v Kensington and Chelsea RLBC (Grenfell Tower Litigation) [2022] EWHC 2006 (QB)). Also, a party refusing mediation must now make a contemporaneous statement of its reasons which will be examined by the court if the issue of a costs sanction arises. (See PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288).

Firm encouragement by the courts is only likely to increase given that mediation for claims under £10,000 is being integrated into the civil procedure and the intent is that the ceiling of £10,000 is increased in due course.  The Court of Appeal is set to review the landmark case of Halsey v Milton Keynes General NHS Trust later this year. (Churchill v Merthyr Tydfil  Borough Council https://www.lawgazette.co.uk/news/court-of-appeal-showdown-on-compulsory-mediation/5116466.article ).

What are the common objections to mediation?

• The other side insists on a Joint Settlement Meeting. JSMs are often successful but tend to take place later in the case, whereas mediation often succeeds pre-proceedings. Also, a settlement is not always reached at a JSM where parties are entrenched – sometimes mediation is a better option.   
• The other side says no to the choice of mediator. A list of 3 mediators can be provided to the other side or suggest a suitable mediation provider and let them choose one of their mediators. Remember that in cases against the NHS, the claimant can choose the mediator from the panel pre-approved by NHS Resolution (NHSR).
• The other side says it is too early to mediate. 50% of the clinical negligence mediations carried out by Trust Mediation now take place before court proceedings are issued, and 80% of those mediations will see resolution. To mediate sufficient information is required to responsibly advise clients on the parameters for settlement.
• The other side say they don’t have experience of mediation. Trust Mediation provides an online training course called ‘Introduction to Mediation’ that allows users to understand the process of mediation and when and how to use it.
• The firm prefers the adversarial approach. Sometimes the adversarial approach is entirely appropriate, and some cases need to go to trial. On the other hand, a collaborative approach at a mediation might provide the right outcome earlier, and the client may be pleased to go down a pragmatic, less stressful route.
• Concern that the client may think the lawyer is not fully dedicated to fighting for their rights. In addition to the above, mediation can give the claimant the additional opportunity of getting assurance that the procedure causing the problem has been changed or they may receive an apology from the defendant during the mediation process.  Mediation can help to deliver these extra-legal elements for the client.
• Concern mediation might be seen as weakness. Mediation is a voluntary process and if a satisfactory settlement can’t be negotiated then the client can walk away and proceed to trial. In practice that rarely happens.
• Parties are nervous or uncertain about mediation. Trust Mediation offers confidential pre-mediation discussions with claimants and their solicitor to discuss such matters. Also, 80% of our mediations result in a settlement and Trust Mediation are here to provide guidance and training if required.
• The court process gives you more control. It is ironic that some people object to mediation on these grounds as all parties have more control during the voluntary process of mediation than they do when complying with the Civil Procedure Rule.              
• Concern about under-settlement. The actual risk of this is very low indeed.  The claimant participates in the mediation, can question and receive advice from their solicitor and counsel, and they will not be rushed into a final decision. Also, the claimant will be invited to have a friend of family member with them at the mediation, so that they can consult with that person before making a final decision.
• Uncertainty about who pays and how much it costs. Trust Mediation will provide full details about this. In the NHS cases NHSR will generally pay the mediator.
• Concern that mediation is an extra layer of expense for the client. Approximately 80% of mediations will not result in any additional expense as the claim will be settled on the day or shortly afterwards. In some cases where settlement is not reached during the mediation, the issues would usually have been narrowed and the parties will have a good idea about the real issues to concentrate on at trial. This offsets the cost of mediation. Attempting settlement by any means involves some risk of incurring costs.   
• Concern about whether the cost is proportionate in lower value cases. Cost is always a consideration and online mediation has worked very well in lower value cases. Claimants are clearly more relaxed when mediating online from home and are fully supported in the virtual online room by their solicitor and counsel. Online mediations are cost efficient and save significant travel time and cost.
• Concern that the outcome might not be as favourable as trial. Not every case succeeds, a claimant could wait 18 months to get to a trial and then lose. Mediation helps to understand the strengths of the case and mitigates the risks of an unsuccessful litigation.

At Trust Mediation we understand that the current delays in court are financially impacting the personal injury and clinical negligence firms in this sector and with the extension of Fixed Recoverable Costs coming into force, this will also place a premium on mediation as an effective early settlement tool.

There are many benefits to using mediation and Trust Mediation is here to help.

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As the legal landscape evolves, embracing mediation as a regular means of dispute resolution could significantly contribute to the success and profitability of claimant law firms. It is recognised, of course, that the interests of the claimant are paramount and central to all decisions made on the case. That said, the following economic benefits are worth considering. 

Unlocking Work in Progress (WIP): 

Mediation offers claimant law firms a unique advantage in terms of unlocking Work in Progress (WIP) and accelerating cash flow. In traditional litigation, cases can remain in progress for extended periods, tying up valuable resources and restricting the availability of working capital. However, by embracing mediation as a routine method of dispute resolution, law firms can speed up case resolutions, convert WIP into cash and recover disbursement outlay more swiftly.  Promptly settling cases and converting WIP into revenue allows law firms to maintain financial stability and allocate resources strategically. 

The accelerated resolution of cases through mediation also reduces the risk of any potential financial loss from an uncertain outcome in court. Not all cases will succeed, and if a case is running under a CFA, the information received at the mediation can influence your risk assessment of whether to run the case to trial if the case doesn’t settle. 

By transforming WIP into cash through the mediation process, law firms can not only improve their cash flow, but they can also invest in growth initiatives and optimise their financial position. The efficient resolution of existing cases means that claimant law firms can devote more attention to pursuing and acquiring new clients, thereby fostering growth, and establishing a strong market presence. 

Increased Efficiency: 

Mediation is known for its efficiency in resolving personal injury and clinical negligence disputes, with over half of mediations now taking place before court proceedings are issued.  Unlike court trials, which can take months or even years to reach a conclusion, mediations can be scheduled within weeks, allowing parties to negotiate and reach a settlement within a shorter timeframe. 80% of our mediations settle on the day or very shortly after. This settlement rate is the same whether the mediation takes place pre-proceedings or near to trial. 

Mediators encourage parties to engage in collaborative negotiations and reach settlements that are mutually acceptable. As a result, the time spent on a case can be significantly reduced, enabling law firms to conclude matters efficiently.   The expeditious resolution of cases through mediation enables claimant law firms to satisfy clients’ objectives as well as facilitating taking on new cases, leading to higher turnover rates and increased revenue generation.   

Mediation can also improve efficiency when negotiations have stalled. If one or both sides have made their final offers and there is no prospect of settlement, mediation could be the best way to bring the claim to conclusion. This is ultimately better for the firm’s costs recovery, risk management and cash flow position. 

 
With the Fixed Costs regime changing in October, mediation will also be a valuable tool to help achieve early settlement which is crucial in a fixed-fee regime. Mediation can significantly reduce the costs associated with traditional litigation and moreover, mediation sessions generally require less preparation time than going to court.  By minimising costs and accelerating case resolution, mediation allows law firms to allocate resources more efficiently. 

Agreeing costs at the mediation: 

Legal costs can be agreed at mediation. Mediation is a bespoke resolution, and whilst reaching agreement on legal costs as well as quantum isn’t yet the norm, there is nothing to stop parties from agreeing costs at the mediation. Provided claimants supply a detailed breakdown of legal costs in advance of the mediation, matters can be resolved in their entirety to bring total finality for claimants. 

Enhanced Client Satisfaction: 

By offering an alternative to litigation, mediation provides a more client-centric approach to dispute resolution. Claimants often experience emotional distress and financial strain because of their injuries. Mediation allows for a more collaborative and empathetic process, fostering a greater sense of control and involvement for clients. The active participation in the resolution of their case and knowing that they are being listened to are reasons claimants frequently give for their positive experience of mediation. 

These positive experiences and successful outcomes achieved through mediation can lead to repeat business for injury law firms. Clients who have undergone mediation and achieved favourable settlements will be more inclined to return to the firm for their future legal needs. Additionally, satisfied clients are more likely to recommend the law firm to friends, family, and colleagues who may require legal representation. 

Summary 

Mediation not only offers economic advantages in terms of reduced costs, increased efficiency, enhanced negotiation skills and improved client satisfaction, but by embracing mediation as a routine method of dispute resolution, law firms can accelerate case resolutions, convert WIP into revenue, and maintain financial stability.  

With these economic benefits, mediation becomes an essential tool for claimant law firms seeking to thrive in a competitive legal landscape while providing effective and client-centric services. 

Trust Mediation are proud of their track record of over 80% of their mediations settling. If you need support with a mediation and or would like to discuss he economic benefits of mediation in more detail, please get in touch. 

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1. Proving Negligence:   Whether a clinical practitioner has been negligent is often hotly disputed in clinical negligence claims, which means that both sides face risk. Mediation is an ideal forum for reaching a liability settlement based on litigation risk where there are such disputes.

2. Proving Causation:   This is typically a highly contested aspect in a clinical negligence case, with both parties presenting arguments as to whether the negligent act caused the injuries.  Gathering reliable and persuasive expert evidence is an important stage, and once expert reports have been received, can motivate parties to take the case to a mediation.

The pre-action protocol process encourages the parties to reflect upon their position once the letter of response has been received. This is the stock-take and an ideal time for both sides to ask themselves “what will it take to resolve this case?” Disclosure of preliminary expert evidence on a without prejudice can often assist and mediation provides the ideal confidential vehicle to enable disputes about evidence to be explored.  Mediation can be used to help resolve either just the issue of causation in isolation, but from experience, it often results in settlement of the claim in its entirety.

3. Case Value:  Assessing the sum in issue is a process both parties lawyers carry out as a matter of course throughout the life of the case. Whether you are miles apart in terms of your valuation of the case, or you have some sticking points regarding future loss, the mediation process can facilitate meaningful discussions using the evidence available. Even if a settlement isn’t reached during the mediation itself, it’s not uncommon for cases to resolve shortly afterwards. In sensitive cases it may be that instead of counter schedule the Defendant takes advantage of the flexibility of the mediation process and chooses to use a suitably worded position statement to reflect its position without causing undue upset.

4. Emotional Toll on Clients: Clients pursuing clinical negligence claims are often grappling with physical and emotional trauma and solicitors with expertise in this field are aware of the need to handle their clients’ cases sensitively and empathetically while managing their expectations and helping them navigate the complex legal process.  Claimants have different objectives and priorities, and a claimant can choose whether to be fully engaged with the mediation process, as they often do, or take a backseat. Most claimants choose to participate in an online mediation from the comfort of their own home. Early mediation has the same prospects of settlement as one that takes place later in the case and early settlement has the added benefit of reducing stress.

5. ADR and Settlement Negotiations: Given that the majority of clinical negligence claims are settled out of court, solicitors must keep their clients well-informed about the different Dispute Resolution (DR) options at their disposal. Balancing the desire to achieve a satisfactory settlement for a client with the need to avoid unnecessary litigation, can be a significant challenge. Trust Mediations’ specialist mediators can provide training and assistance about the preparation stage as well as the mediation process.

6. Managing Client Expectations: Solicitors manage their clients’ expectations throughout the claims process, including the likelihood of success, potential compensation, and the duration of the case. This involves balancing optimism with realism and ensuring that clients are well-informed about the potential risks and rewards of their claim. The process of mediation enables a client’s expectations to be managed and as well as receiving advice from their solicitor and counsel, the claimant will hear from the other party about its’ views of the case and experience the neutral mediator’s reality test. This is a particularly useful tool where there may be unrealistic expectations.

7. Limitation Period: If the limitation date is fast approaching, Defendants will sometimes be prepared to agree a specified “standstill” period to effectively postpone the limitation period so as to enable a mediation to take place. This saving of court fees and associated costs may pay dividends when settlement negotiations come down to the wire.

8. Legal Costs and funding: Clinical negligence claims often involve proportionally high legal costs due to their complexity, the need for expert evidence, and potentially lengthy proceedings. Solicitors must ensure they can cover their costs while still providing effective representation to their clients. Mediation is a tool that enables early settlement which is why over 50% of our mediations occur pre-proceedings and over 70% pre-CCMC. This reduces the costs exposure of the claimant and their solicitor. Trust Mediation understand that NHS Resolution are prepared to consider agreeing costs or at least a substantial interim payment following settlement at the mediation, provided details are provided in advance.

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Trust Mediation are one of only two independent mediation firms approved by NHS Resolution to conduct clinical negligence mediations and have been part of the scheme since it launched in December 2016. At the end of 2022, Trust Mediation reached a new milestone by reaching 1000 clinical negligence mediations.

Julienne Vernon is also an accredited mediator who has been with NHS Resolution for over 20 years. She has been responsible for the mediation scheme since its inception and has been instrumental in its implementation. According to Julienne, the scheme was set up to align with the “policy and strategy” of NHS Resolution to achieve the “fair resolution of healthcare claims” and to “keep patients and healthcare staff out of court which is both stressful and costly”. With around 77% of their cases settling before proceedings, and just 0.5% going to trial, mediation is seen as an effective dispute resolution tool for healthcare disputes.

There was resounding agreement by the panel that mediation is a powerful setting for both claimants and defendants alike. It is an opportunity for claimants to raise concerns in a way that round-table meetings don’t allow for. It enables families to speak directly to the clinicians and Trust managers involved, and for time to be given to listening, as well as an opportunity to give assurances of lessons learnt. From the experiences of both Trust Mediation mediators and Julienne, it was observed that cases are more likely to be resolved when they are attended by the healthcare professional(s) concerned, something that in these days of online mediation is more easily achieved.

It also seems that the familiarity that everyone now has with online meetings has significantly contributed to the continued numbers of cases going to mediation. Rather than bringing about a dilution in the impact of a mediation which you might expect from moving it to an online process, it has in fact become less daunting with claimants, their families and busy clinicians, who are all able to participate from the comfort of familiar surroundings without having to spend entire days away from their practice. Participants can “pop the kettle on” and feel more at ease participating, resulting in “less intimidation, less travelling and less waiting round”.

Historically mediation was used to ‘crack the nut’ but this is no longer the case and mediations are now seen as ‘business as usual’.

Tim Wallis revealed that analysis of mediation trends at Trust Mediation over the years has seen an impressive 80% settlement rate go largely unchanged. What has changed though, is the timing. It used to be the case that parties turned to mediation very close to trial dates, but now they are taking place much earlier in the lifecycle of a case, with 50% of mediations now being conducted pre proceedings.

This confidence in taking cases to mediation earlier in the process has been largely fuelled by repeat claimant players who have become skilled at identifying cases and who are familiar with the mediation process. This is undoubtedly the direction of travel for mediations, particularly as the CJC ramps up its messaging of parties embracing ‘resolution’ rather than an ‘adversarial’ approach to clinical negligence claims.

Mediation: not the preserve of lower value cases

Whilst the NHS Resolution pilot scheme for mediation were initially focused on low value cases, this is not the case now. In 2022, Trust Mediation found that 38% of cases mediated had a value in excess of £750k. Meditation isn’t just concerned with mediating cases in their entirety. Mediating over liability issues only is not uncommon, and Trust Mediation mediators have also been approached to resolve causation only. Interestingly, where mediations are embarked upon on this basis, it is often the case that the parties end up resolving the case in its entirety, as Paul Balen puts it, “talking, reality testing, and discussion can produce results that weren’t anticipated”.

Mediation is bespoke resolution, and whilst reaching agreement on legal costs as well as quantum isn’t yet the norm, there is nothing to stop parties from agreeing costs at the mediation. Provided claimants supply a detailed breakdown of costs in advance of the mediation, matters can be resolved in their entirety to bring total finality for claimants.

The practicalities of taking a case to mediation

First and foremost, it’s a case of ‘know your case and know your client’. Mediation puts claimants at centre of the resolution process, so if it’s important for your client to receive a personal apology, or be heard on issues such as ‘lessons learned’ and the impact the injury has had on them, then the extra judicial remedies offered by the mediation process are significant.

Mediation operates on ‘customer choice’ and a voluntary process. Whilst mediators can get involved in explaining the process to either party, it is not their job to persuade a party to go to mediation. Trust Mediation will always arrange a pre-mediation call with each side, this is now recognised to be a key part of the mediation process. Once parties have committed to the mediation, if either party decide to cancel, the cancellation charges are tiered depending on the proximity to the date.

And finally….as put by Julienne, “mediation is not a mini trial”. If used to its full potential it can provide a much earlier and more satisfactory ending to the litigation process.

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