The Civil Justice Council working party recently published a paper on mediation which showcased that the process wasn’t being used enough within litigation proceedings – but why?
It was determined that this form of alternative dispute resolution (ADR) is not a concept at the forefront of parties’ minds as a means to concluding litigation. Reasons given were that too many lawyers see the process as flawed, too many clients want their day in court and too many mediators are failing to convince those involved that they can offer a tangible benefit.
The report acknowledges that to date, efforts made to make ADR integral to the litigation process “have been extremely patchy” and that measures to encourage mediation – signposts, threats of sanctions and professional obligations on lawyers – are well crafted and thought out, but ultimately, not working.
Making mediation compulsory has previously been discussed and subsequently dismissed. However, the working party makes clear in their report that this conversation is needed again. It is suggested that there are those who would support moves to ensure ADR is a condition of access to courts or progress beyond a case management conference.
Currently, clinical negligence and personal injury claims make up just 1% of mediator caseloads.
Ultimately, mediation is all about compromise, which is lost the minute you go to court and the outcome of the case turns on the opinion of a single judge sitting alone. Therefore, it is surprising there is not more uptake given the risks and costs of proceeding to trial.
Having regard to the benefits of mediation, it is a process that we actively encourage our clients to participate in whenever appropriate; however, suggestions to mediate are often met with reluctance from Defendant solicitors, and usually without good reason.
Mediation can only succeed where both parties are engaged in the process and willing to make concessions. I have had experience of Defendant Trusts agreeing to mediate only to turn up on the day and be met by the Defendant’s solicitor stating that all offers to settle their client is willing to make have already been made and they have no further offers to make.
The working party also suggests that the court may have a greater role to play in penalising parties who refuse to engage meaningfully with mediation, although this may not be as easy as it sounds. It goes on to state that penalising unwilling parties is the wrong approach, “the conclusion of a well-conducted trial and a carefully prepared judgment are not a hospitable background against which to submit that the whole thing might have been better avoided”.
In April 2017, the NHS Litigation Service rebranded itself as NHS Resolution as a response to the growing costs of litigation to the NHS. NHS Resolution pledge to extend their use of mediation and other forms of ADR “to keep cases out of the courts wherever possible, minimise legal costs and deliver resolution in its broadest sense, which is about more than just money”. It remains to be seen if mediation will become a more common practice in the settlement of clinical negligence claims or whether Defendants will continue to show reluctance to a procedure, which few would argue, has the potential to improve the civil justice system.
If you’d like more information on the mediation process in litigation matters, call our team of expert solicitors on 01708 229444 or email us using our contact form.The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2017.