Mediation in Clinical Negligence actions – does it work?
In May 2008 both sides to a long running medical negligence action voluntarily entered mediation which resulted in the matter being brought to a conclusion. We understand this was only the second time that mediation had been employed in a medical negligence action, and the first time that mediation had been entered into on a voluntary basis in such an action.
Rather than adopt a “wait and see” approach to the use of mediation in clinical negligence claims in this jurisdiction, Hayes solicitors has embraced mediation as a dispute resolution mechanism that can provide a great deal of satisfaction for doctor and patient alike. As a result, this firm is leading the way towards mediation in clinical negligence claims.
Mediation in this case was suggested by the defendants, represented by Hayes solicitors, and accepted by the plaintiff which obviated the need for an application to be made to the High Court under section 15 of the Civil Liability and Courts Act 2004.
Earlier in the proceedings, and prior to the exchange of expert evidence, the parties had reached settlement. In the circumstances the plaintiff had been required to seek the High Court’s approval of the sum agreed but when the matter came to be ruled, the High Court rejected the sum as being too low.
Following exchange of expert reports, it became clear that the two major points of disagreement between the parties were causation and the cost of nursing care for the plaintiff. On causation, there was disagreement between the experts as to whether the allegedly negligent action was responsible for the injury suffered by the plaintiff. On nursing care, there was a considerable disparity as to the nature and amount of care required. This latter element of the dispute took on a particular significance after the High Court’s rejection of the earlier settlement as too low and ultimately became the central debate at mediation.
In considering whether mediation might work, the defence was aware of the risk that the High Court might still reject any sum agreed and the matter would still have to proceed to trial. However it was felt that the involvement of an independent mediator in possession of both sides’ evidence might be a very persuasive factor in encouraging the Court to accept the sum.
The mediation conference lasted five hours and began with a meeting between the sides, led by the mediator. The purpose of the initial meeting is for the mediator to define his role as facilitating the parties in reaching their own decisions and for him to reinforce that all statements uttered during mediation are confidential and cannot subsequently be repeated by the parties, nor relied upon should mediation fail. It also provides the parties with an opportunity to meet face to face and to address each other, for example to express regret or to set out what they regard as the main sticking points between them.
The sides then retired to separate rooms and were each met several times in turn by the mediator. At these meetings the mediator was willing to hear not only from Counsel but from solicitors, the Consultant and the nursing care expert. In moving between the parties, the mediator only repeated to the other side such information that he had been expressly authorised to disclose.
While respecting the need for confidentiality, it can be said that the outcome of this mediation was successful and was accepted by the High Court. It not only resulted in a fair financial settlement for the family, but it provided both sides with the equally valuable emotional relief of having had their say. A critical aid to reaching agreement was the presence of the nursing care experts who were able to deal with the family’s concerns as they arose on the day.
The successful outcome of this mediation means that mediation will be recommended by this firm as a cost effective and confidential dispute resolution mechanism for clinical negligence claims in cases where the issues between the parties are clearly defined and would benefit from access to the expert clinical witnesses for each side.
Ciaran O’Rorke
Partner
cororke@hayes-solicitors.ie
Martha Wilson
Solicitor
mwilson@hayes-solicitors.ie