Mediation
The Clinical Dispute Forum’s [“CDF’s”] Mediation Working Group was one of the first to be established, building upon work already underway to explore the scope for mediation as a means of resolving clinical negligence disputes: principally, the NHS Executive-endorsed Mediation Pilot Scheme.
At a time of increasing complaints and litigation arising out of dissatisfaction with healthcare, it must of course be remembered that there are still large numbers of people who do not, for whatever reason, access legal advice and assistance at all following a problem . Of those who have been involved in traditional claims management, research undertaken to evaluate the Mediation Pilot showed that some 64% found it difficult or impossible to discuss the issues fully, and over 77% were unable to have their case dealt with in a reasonable time. By contrast, participants in the NHS Mediation Pilot Scheme felt that mediation offered the opportunity for greater participation by the parties; providing flexibility both in the process and in the remedies available; and resulting in more efficient case disposal.
Clearly, there would seem to be a need to cater to currently unmet need for legal advice and assistance, and to improve the means (and range) of dispute resolution available (the former being likely to be, at least in part, dependent upon the latter).
The Clinical Disputes Forum has therefore been committed to developing and disseminating specialist guidance on the application of mediation to the resolution of clinical disputes. Development of the guidance was undertaken in the context of developing proposals for a fully integrated system of resolution, (aimed at addressing the issues raised, whether initially brought by way of complaint or claim) .
The Guidance has been targeted at specialist legal practitioners, with a complementary “Users’ Guide” , targeted at patients/claimants, clinicians and NHS managers.
Whilst specialist claimant and defendant solicitors have been identified as ‘gatekeepers’ of the process, holding the key to increased take-up, it is thought that their consideration of alternative dispute resolution can be hampered by a natural suspicion of each other’s motives. As a cross-sector, multi-disciplinary body, it is hoped that the CDF has been uniquely placed to take account of all parties involved in the process.
As both the NHS Litigation Authority and the Legal Services Commission are encouraging the greater use of mediation, and as the Lord Chancellor’s Department’s commitment to ADR was evidenced by its running an event in March 2003, dedicated to promoting its use in clinical negligence disputes, it is hoped that the Guidance may support:
Development of models of good practice in mediation; ensuring the protection of parties’ rights and interests
Enabling the parties in dispute to be fully informed of the available choice of means of resolution, ideally within an integrated system for clinical dispute resolution
Enabling earlier consideration of non-monetary remedies sought, as well as the settlement of any financial compensation due
More active consideration of the application of mediation within the Pre-action Protocol and Civil Procedure Rules.
AVMA/NHSLA/LSC-CEDR PROJECT
Specialist Clinical Negligence Mediators
The CDF participated in a collaborative project, spearheaded by Action for Victims of Medical Accidents [“AVMA”] and the NHS Litigation Authority [“NHSLA”], with funding from the Legal Services Commission [“LSC”], to develop appropriate specialist training which could support the accreditation of mediators of clinical negligence disputes. The Report on the Initial Phase of this project was produced in October 2002 . It is proposed that the modular course will encompass core skills, as well as a ‘law’ and ‘medical’ module (from either one of which some experienced practitioners may be exempt). The modular course is to be piloted by the Centre for Dispute Resolution [“CEDR”].
Representing Clients in Clinical Negligence Mediations
It is further proposed that training be developed specifically for lawyers representing clients in the mediation of clinical negligence disputes, supported by a Code of Conduct and Party Accord for all parties participating in mediation.
Preliminary Process Review
The project team, led by Henry Brown, and monitored by an Advisory Group, has also developed proposals for a ‘Preliminary Process Review’ [“PPR”] in any given case, by which to provide case-specific guidance to parties as to the relative merits of the range of options by which resolution might be attempted (including, but certainly not exclusively, mediation). It is proposed that PPR be piloted, to explore more fully the contribution it might make to improving the process for resolution of clinical negligence disputes.
In as much as this project and the ongoing development work should support the objectives as stated above, the CDF is pleased to contribute thereto.
Susan Polywka
Clinical Disputes Forum
May 2003
Refer:
Appendix 2A: Forum paper – The Clinical Disputes Forum’s Guide to Mediating Clinical Negligence Claims, July 2001
Appendix 2B: Forum paper – The Clinical Disputes Forum Users’ Guide to Mediation, July 2001
Working Party
