The panel discussion called ‘Mediation – views from behind the curtain’ featured personal injury and clinical negligence solicitors from both claimant and defendant perspectives including Jenny Harris (Capsticks, representing NHS Resolution), Hugh Johnson (Stewarts), David Withers (Irwin Mitchell) and Chris Eccles (Clyde and Co).
Panel Chair and Trust Mediation Director, Paul Balen, set the scene by highlighting recent legal shifts, including the ‘Churchill’ case and changes to the Civil Procedure Rules (CPR), which increasingly empower judges to mandate dispute resolution. He suggested that ignoring mediation is becoming a “recipe for disaster” due to potential cost penalties.
The panel explored the evolving landscape of out-of-court dispute resolution, with a particular focus on mediation in personal and clinical negligence cases and here is a summary of the main discussion points.
- Benefits of Mediation: The panel unanimously endorsed mediation as a powerful tool. Jenny Harris emphasised its ability to empower claimants by giving them a voice and facilitating extrajudicial resolutions, such as apologies or changes in hospital procedures, which courts cannot order. David Withers and Chris Eccles noted its effectiveness in complex cases with multiple defendants or difficult relationship dynamics.
- Timing of Mediation: A significant portion of the discussion centered on the optimal timing for mediation. Paul Balen noted a trend in clinical negligence cases towards pre-issue and pre-CCMC (Costs and Case Management Conference) mediation, driven by cost-saving benefits. While the panel agreed on the value of early mediation, they stressed that “one size doesn’t fit all.” It’s crucial to have sufficient evidence to make a responsible evaluation, but this doesn’t necessarily mean waiting until the brink of trial.
- Types of Mediation: The distinction between facilitative (where the mediator guides discussion) and evaluative (where the mediator offers an opinion) mediation was a key topic. David Withers shared an early career mistake of expecting a facilitative process and receiving an evaluative one, advising clarity on the mediator’s role from the outset. While facilitative mediation is more common and often preferred for its collaborative nature, the panel saw a place for evaluative approaches, particularly on discrete, entrenched issues. There was a place for both evaluative mediations and pure neutral evaluation in the dispute resolution toolkit.
- Mediation vs. Joint Settlement Meetings (JSMs): The panel contrasted mediation with the traditional JSM process- the dispute resolution option used most often by Personal Injury lawyers. They pointed out that JSMs can sometimes become adversarial and point-scoring. Mediation, by contrast, fosters a more humanising and collaborative environment, allowing families to feel more involved and in control. The presence of a neutral mediator can help maintain focus on a fair result rather than “winning” a legal argument.
- Practical Advice: In a Q&A session, the panel offered practical tips for making mediation less daunting for families. They highlighted the benefits of virtual mediations, as they allow clients to remain in the comfort of their own homes without the pressures of travel. They also stressed the importance of preparation, including drafting respectful, solution-focused position statements, and ensuring clear communication about the process and what the client can expect.
In conclusion, the session painted a clear picture of a legal profession increasingly embracing mediation. The panel advocated for a shift in mindset, urging practitioners to ask “Why wouldn’t we mediate?” and to view it not as a last resort but as a flexible, effective, and more client focussed path to resolving complex injury claims.
To watch the full panel discussion please click here https://vimeo.com/1085773385/66e6025cfe?ts=0&share=copy
Credit: Our thanks go to APIL for permission to share this video content.