(CPR changes and the latest trends)
Mediation has been in the news this week following the coming into force of changes to the Civil Procedure Rules on 1 October. These changes are a direct consequence of the decision of the Court of Appeal in the Churchill case. The new rules encourage the parties to use ADR and especially mediation to resolve disputes.
Lawyers representing clients in clinical negligence cases will be familiar with the overall trend towards increased mediation in these cases and will welcome the CPR changes. In what has historically tended to be quite polarised and adversarial litigation, mediation provides a genuine opportunity for parties to “take the gloves off”, adopt a more collaborative approach and seek a negotiated settlement that works for all parties bearing in mind their BATNAs (Best Alternative to a Negotiated Settlement).
Having experienced mediation in clinical negligence cases from the perspective of both a lawyer and a mediator it’s even clearer to me why the process is so advantageous. Mediation provides an efficient dispute resolution process tailored to the needs of the parties and with the right mediator it can be flexible, creative and considerably less stressful for all involved than the alternative of not settling.
Effectiveness of Mediation
Over the summer NHS Resolution released its annual report which emphasised the continued effectiveness of mediation in clinical negligence cases. The Report published on 23 July 2024 notes the marked shift towards Early Resolution Strategies which are helping to reduce legal costs.
Of the cases that were mediated as part of that strategy, NHSR report 79% settled either on the day or within 28 days of the mediation compared to a 41% settlement rate for round table (RTMs) or joint settlement (JSMs) meetings. It’s also worth noting that the success rate for mediation in clinical negligence cases is gradually improving with experience of the process. In its 2020 Evaluation Report on mediation in clinical negligence NHSR reported a success rate of 74%.
The NHSR Annual Report also confirms that for claimants and their lawyers considering their BATNA (see above) the latest trial statistics give pause for thought. In 2023/24 50 claims were litigated to trial, with only 17 (34%) resulting in an award of damages.
Increased Use of Mediation
The NHSR Report noted that 195 cases proceeded to mediation in 2023/24. This was down from the 2022/23 figure of 229. Similarly, the Report notes a reduction in RTM/JSM meetings for the year and this is explained in the report as in large part due to internal team changes temporarily reducing capacity. It is to be hoped that those issues have been addressed and that next year’s report will see a return to increasing numbers of cases being resolved via their Early Resolution Strategy. This is supported by the slight increase in new claims notified (3%) from 10,567 in 2022/23 to 10,834 in 2023/24 (likely reflecting the end of the post-Covid dip in caseloads for claimant firms).
In my view NHSR’s commitment to mediation and other forms of early resolution strategies is to be applauded and I have now seen first-hand the genuine and welcome shift in the approach to settling claims by NHSR staff and their lawyers which is near revolutionary compared to even 10 years ago.
Virtual Mediation
The move towards online or virtual mediation simply became a necessary consequence overnight of working practices during the pandemic. CEDR’s 10th Mediation Audit in 2023 demonstrated that over 70% of mediations took place virtually and this trend is only likely to continue given its cost-effectiveness and as technology continues to improve.
Nevertheless, I have seen the real benefits of in-person mediations, particularly for the claimant and their family and where the value of the claim makes the additional costs proportionate. The spirit of collaboration that can be fostered in person and the energy generated can really make the difference so I would expect to see in-person mediations continue in the right cases.
Conclusion
I am sure we will continue to see an increase in the number of clinical negligence cases resolved through mediation. Given the new CPR provisions and the successful track record to date of mediated clinical negligence cases it’s clear that mediation provides scope for efficiency, cost-effectiveness and ensures a very patient-centred approach. It’s better for patients, it’s better for clinicians and NHS staff, it’s better for the tax-payer and arguably it’s better for the lawyers.