News and Views 
Since being awarded one of the contracts to mediate NHS Resolution personal injury and clinical negligence cases in December 2016 the world of mediation in particular, and dispute resolution in general, has become mainstream. This transformation is led by the Master of the Rolls, Sir Geoffrey Vos who insists that those previously described as litigators are in fact dispute resolution lawyers and it is court which is the last resort not dispute resolution.
The recent decision of the Court of Appeal in Churchill[1] makes it officially the case that a judge can order mediation and other forms of dispute resolution to take place and stay court proceedings over the heads of the parties and indeed can insist parties follow complaints schemes first if available and appropriate. The law has moved on from the decision in Halsey[2] by allowing judges not simply to encourage dispute resolution but to insist on it.
Giving the judgement in the Court of Appeal the Master of the Rolls ruled that a judge could order mediation but that whether dispute resolution should be ordered would be left to his discretion taking into account the circumstances of the particular case. If a claim is not resolved by dispute resolution a party’s right to trial is preserved. He declined to define the discretion but refused to order a stay in that particular case considering that the defendant Council’s complaints policy which it wanted the court to order should be followed by the claimant might not be the most appropriate resolution process. Instead, he urged the parties to embrace mediation.
The days of settlement at the door of the court have been replaced by the “stocktake” at the end of the PAP and woe betide any party who ignores a request to negotiate or mediate. The MR is not alone. He is backed by judges who will now utilise their case management powers[3] to stay cases where parties should be adopting dispute resolution and penalising even successful parties in costs[4] for not seriously attempting dispute resolution. The world “Alternative “is now less applicable, unless it’s referring to alternatives to court, as in judicial eyes there is no alternative. Very few cases will in future merit the use of court and judicial time. Other forms of dispute resolution including settlement meetings and direct negotiations will always have their place but replacing judges and the adversarial approach with an independent neutral, especially one with a specialist background in the field, has shown its worth in case after case.
In the nearly 8 years of the NHSR Mediation Scheme and through 1100 mediations we as mediators at TM have seen what works and what does not work in dispute resolution. We have evolved from just offering Facilitative Mediation – where the mediator facilitates and works with the parties to reach their own settlement, to offering a whole toolbox of techniques – which we brand TM+. Our toolkit now includes Evaluative Mediation (where during the course of a mediation the mediator using his expertise as a specialist personal injury or clinical negligence lawyer is asked by the parties to express a non-binding view on an issue or the issues in the case) through to stand alone Neutral Evaluation (with or without mediation following) and Arbitration through our sister company Trust Arbitration where specialist arbitrators with judicial experience determine cases online within days rather than the months if not years taken by the courts.
In days gone by settlement meetings tended to take place in the corridor outside court. We have noticed how during the last 8 years the mediation date has moved from late in the litigation cycle in the early years of the Scheme until today, when 85% of our mediations are pre-CCMC and 54% pre-issue. This of course saves an enormous amount of time and costs and also reduces stress and angst for the parties. The resolution rate on the day or immediately after the mediation is consistently approaching 80% no matter where in the cycle the mediation takes place. Almost certainly that is an underestimate as we do not necessarily know the outcome of all cases after the end of the mediation.
Early pilots of the NHS mediation scheme concentrated on the lower value cases, but mediation has shown that it works at all levels, with 38% of our current workload covering claims in which over £750k is in issue compared to 17% when the scheme started.
Before 2020 online mediations were a rarity. Now they are here to stay, pandemic or no pandemic. Parties have embraced and enjoyed the informality and flexibility of the process. Everyone is noticeably more relaxed. Posturing and adversarial phraseology simply do not work online. Claimants enjoy the ease at which they can join in or elect not to. As one claimant wrote:
“The opportunity to have mediation in the way that we did was absolutely the best thing that could have happened. The pressures of having to go somewhere for a long day, arrangements for the children, public transport, being in unfamiliar surroundings all take a toll … I definitely recommend it… “
And so should the parties’ lawyers. Early resolution brings greater client satisfaction and the finance partner’s approval as cash flow is accelerated.
Mediation is not simply a tool to use where quantum is in issue. Liability only issues are ideal for mediation, as is any case where there is more than one defendant, and it is not unusual for these to conclude with a final settlement with the parties using their expertise to find a sweet point for quantum settlement; thus demonstrating that you don’t need a trial bundle to settle a claim. Talking, reality testing and informed discussion with a specialist mediator can produce results which the parties may not have anticipated, with huge savings in costs and great satisfaction to both parties especially claimants. If mediation, whether facilitative or evaluative, is not thought to be the right dispute resolution tool for a particular case then stand-alone neutral evaluation may be the answer.
We have also seen the importance of encouraging parties to prepare position statements. The mere fact of asking a party to sit down and think resolution rather than produce a scattergun adversarial tirade often prompts a more realistic appraisal and a collaborative approach.
Dispute resolution has now proved its worth in clinical negligence cases but has yet to take off in personal injury litigation. Despite the absence of a desire to explore extra judicial remedies, such as apologies and lessons learnt which characterise many clinical negligence cases, there is no reason why dispute resolution involving a specialist neutral whether in mediation, evaluation or arbitration should not work equally as well in the personal injury arena.
Current judicial practice as exemplified by the Churchill judgment leaves little scope for any party to a potentially or actually litigated claim to avoid dispute resolution instead of, or at least as a prelude to, involving the courts. Coupled with compulsory neutral evaluation in lower value clinical negligence claims and the provision for mediation fees in the new intermediate track, mediation in particular and the dispute resolution toolbox in general are here to stay.
Paul Balen
Director,
Trust Mediation and Trust Arbitration
Note:
Trust Mediation provides specialist mediators and evaluators for personal injury and clinical negligence cases. Its USP is that all its mediators and evaluators have a specialist professional background in dealing with such cases. If you would like to find out more about mediations in clinical negligence and personal injury cases do contact [email protected] or sign up for one of our forthcoming training presentations or mediation clinics.
Trust Arbitration provides swift online arbitration of liability and quantum disputes in road traffic claims below £25,000 by specialist arbitrators with judicial experience. For more information contact: [email protected]
[1] Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416
[2] Halsey v Milton Keynes General NHS Trusdt (2004) 1WLR 3002
[3] Abdul-Kadir v RBKC 2022 EWHC 2006
[4] Laporte v The Commissioner of Police 2015 EWHC 371; Marsh v Ministry of Justice 2017 EWHC 1040; Stoney-Anderson v Abbas [2023] EWHC 2964(CH)
