A claim was made by family, collectively referred to as X. Their child, it was said, had died through a combination of errors in an A&E department of a major hospital. X had been represented but their solicitors had ceased to act.
The child had attended the A&E department and it appeared that various red flags were missed. The child’s father had done his best to attract attention but in the end the child died, so it was argued, from the consequences of the failure to diagnose the unusual condition.
Evidence of breach of duty was balanced. A trial could have gone either way on breach and causation. The damage done to the parents of the child was clear. Anger was profound and there was a professed intention to take the matter all the way. There was no trust on X’s part of the willingness of the Trust to apologise or make things better. Quite literally, no amount of money would suffice.
The mediator, who was very experienced and also a clinical negligence specialist, received a full bundle from the Trust’s solicitors and nothing from X. X did not want to meet the Trust and despite the usual guidance on procedure pre-mediation, X arrived expecting the mediator to decide the case - and probably in the Trust’s favour, as the child’s father had read some criticism of the NHS Mediation Scheme on the website of the law firm formerly instructed by the family. (This was in the early days of the Mediation Scheme.)
The mediator arrived early, was there when all the participants arrived, and in private pre-meetings went through the procedure in his style. Mistrust was evident in X’s room. Disbelief that any progress could be made was clear in the Trust’s room. Nevertheless, the Trust was fully represented with clinicians, risk managers, solicitors and counsel.
Importantly, the mediator had a trainee mediator present as an observer. (Pausing, this is considered to be vital in any mediation where the claimant is unrepresented.)
The mediator managed to persuade (through self-deprecating humour, mainly about the abject performance of his football team against that supported by X) all participants to come into the plenary session. The ground rules were agreed and the mediator had everyone explain their roles and experiences outside of the sad facts that brought them all to the same room. Conversations about people, rather than the problem began. X visibly relaxed on having, for the first time, the chance to talk to the Trust’s doctors about them as people and not about their role in the death of the child.
The mediator then asked for a break for private sessions during which no offers would be made but he would ask some questions which no one was obliged to answer. These would help the mediator better to plan the rest of the day. He asked for 45 minutes in each room and promised to seek permission if more time were needed. The observing trainee mediator was delegated the task of time keeping.
The mediator did not mind whom he spoke to first. X asked to go outside for a break, so the mediator saw the Trust first. It was surprised that X was so reasonable. It indicated it would be, despite the doubts over breach and causation, amenable to making settlement proposals. What did X really want?
After 30 minutes, the mediator met with X. The mediator asked whether they had a picture of their late child. Weeping ensued and the observer wondered what the mediator was doing. Pictures were shown around. Memories and stories told, and more time requested. At no point did the mediator discuss the law, the allegations, or the basis of the claim.
After an hour, the mediator asked where X hoped to be in three weeks, three months, or three years if today (the mediation) were a success. X indicated that they had different ambitions - some needed an apology, others an explanation, others money to found a youth club project in the child’s memory. All wanted to be able to cherish the child’s memory without having a court experience.
The mediator wondered if they had ever explained this to the Trust. X’s family said the Trust had never tried to do anything other than deny liability. It was not about money - it was about respect, and honour, and the mistakes, as X saw it, never happening again. Trusting the process, the mediator asked whether X would let him bring the Trust in and have X explain their ambitions.
After ten minutes private discussion X agreed.
The next joint session lasted nearly two hours. It would be wrong to describe the emotions or the detail exchanged: suffice to say almost everyone in the room including the observer were in shared tears. The lead clinician, who had not been with the Trust at the time but was a model of compassion, ended up hugging the child’s mother at the mother’s request and they had time alone.
As four hours approached, the Trust made proposals that seemed to satisfy X. They were not simply monetary but involved real clinical issues and future ideals. X asked for 48 hours to think about them. The Trust agreed and (to avoid the offers dying with the end of the mediation) the session was technically adjourned.
The mediator learned a day later that the matter had, after X took brief legal advice, settled amicably on terms a court could never determine or decide.
Both sets of participants wrote warm notes to the mediator and the observer trainee noted that at no point had the mediator discussed breach or causation with anyone in any detail. This was a case that would have run for days at trial with, the mediator guessed, considerable uncertainty but ultimately it was about doing the right thing in all the circumstances - and all present honestly and earnestly, and to their credit, made that happen.
