Medical Negligence Litigation and Mediation: If the cap fits…
The Minister for Enterprise, Jobs and Innovation, Richard Bruton recently announced radical proposals to overhaul medical negligence litigation in Ireland in order to reduce State expenditure on legal fees and resolve disputes in a more efficient and non-adversarial manner. Mooted among such measures is the establishment of a State agency modelled on the Personal Injuries Assessment Board whose remit would include the assessment of damages in medical negligence claims.
There are existing cost and time saving alternatives to traditional litigation however. One of the fastest growing such alternatives is mediation which is a facilitated process by which a confidential and consensual settlement is sought. The modus operandi of mediation is that the parties engage with each other in a non adversarial setting that they reach their own negotiated settlement. It should be considered at any stage of a dispute, even if proceedings have already issued and ideally well before the dispute escalates to frantic and costly settlement negotiations on the steps of the Four Courts.
The main proven advantages of mediation over litigation are lower costs, expedient resolution, the level of control or ownership that the parties can retain over the process, the flexibility of potential remedies, confidentiality and the potential for a continuity of relationship between the parties.
While not all types of dispute are amenable to resolution by mediation, it is arguable that certain medical negligence cases are. Costs can be significantly reduced as a result of the consultative nature of mediation. The key issues in a case are quickly narrowed to those actually in dispute and those capable of being agreed upon. Even if talks break down, this has the potential to significantly enhance the efficiency with which any subsequent proceedings are conducted and therefore reduce costs.
The adage ‘justice delayed is justice denied’ can be particularly relevant in the context of medical negligence claims. At the moment the length of time between issuing of proceedings and handing down of judgements can range by anything between 3 and 6 years. In contrast, according to figures released by the Centre for Effective Dispute Resolution, 75% of cases brought to mediation in the UK settle on the day.
The vast majority of claims brought against medical professionals in the State are done under the tort of negligence. The chief remedy available to litigants is therefore restricted to damages. It is often the case that in medical negligence actions a plaintiff desires a much wider range of redress such as an apology, an explanation or indeed an undertaking to overhaul a particular clinical or administrative process so that the circumstances that led to the complaint cannot recur. The remedies available in mediation are limited only to the imaginations of the parties. In addition the parties are free to choose the mediato who for example could be an expert in the particular field of medicine which is the subject matter of the dispute.
The fact that there is active participation in the mediation process by all parties ensures that significant control is retained, and this can give the parties a vital sense of ownership of the process. This leads to a more sustainable outcome and can be especially relevant in an area of litigation in which high levels of suspicion and even animosity can be a feature.
While any legislative reforms that enhance the efficiency of the legal system are to be welcomed, it is worth remembering that mediation offers an existing and readily accessible alternative to often costly, time consuming and emotionally fraught litigation and not least in the sphere of medical negligence disputes.
As Lord Justice Ward succinctly put it:
"The skills are now well developed. The results are astonishingly good. Try it more often"
Ciaran O'Rorke