Medical Negligence Mediation
Mediation for complex and sensitive clinical disputes
Medical negligence claims often involve more than money. Liability, causation and quantum may be disputed, but the claimant may also want an explanation, an apology, acknowledgement, lessons learned or reassurance that similar events have been addressed. Mediation provides a confidential process in which legal and personal aspects of the claim can be considered in a structured way.
Trust Mediation works with claimant solicitors, defendant solicitors, NHS Resolution and NHS Trusts, medical defence organisations, insurers, in-house teams and counsel in medical negligence disputes. The process is designed to support careful discussion where the facts, emotions and legal/causation issues may be difficult.
Why mediation can be useful in medical negligence claims
Traditional negotiation can deal with the financial value of a claim, but it may not easily create space for wider issues. In some clinical negligence disputes, those wider issues affect the prospects of settlement. The claimant may need to be heard. The defendant may need to explain what has been learned. The legal teams may need to test risk while also managing the sensitivity of the conversation.
Mediation allows these issues to be handled in a controlled setting. The parties can remain in private rooms for much of the process, with the mediator managing communication between them. Joint sessions can be used where appropriate, but they are not required.
For some claimants, mediation may feel less formal and less adversarial than prolonged litigation. It can provide a structured route for difficult issues to be discussed without requiring the claimant to wait for trial.
Cases suitable for medical negligence mediation
Mediation may assist where a claim involves serious injury, fatality, disputed liability, disputed causation, complex quantum, multiple parties, expert disagreement or relationship breakdown between the parties. It may also be suitable where liability is admitted but the parties remain apart on value, future care, loss or non-financial outcomes.
A claim does not need to be simple or low value to be suitable. Complex and high-value claims can benefit from a process that gives the parties time to explore risk, evidence and practical settlement options.
How sensitive conversations are managed
Preparation is important. Before the mediation, the mediator will usually speak confidentially with the legal teams to understand the issues, the parties attending, any sensitivities and whether the claimant wishes to take part directly.
Where a claimant wants to provide an impact statement, seek an explanation or hear an apology, this can be planned carefully. The process can be structured so the conversation takes place at the right time, with the right attendees and with clear expectations. Where the claimant does not wish to take part directly, the legal team can represent their position in the usual way.
Financial and non-financial outcomes
Settlement may include damages and costs, but mediation can also support non-financial outcomes where appropriate. These may include an apology, an explanation of what happened, discussion of changes made, patient safety learning or reassurance about future risk.
These matters do not replace the legal assessment of the claim. They can, however, affect whether the parties are able to move towards resolution. In many cases, dealing with non-financial issues in a respectful and practical way helps the financial negotiation become more constructive.
Case Study: Resolving More Than Liability, Causation & Quantum
In one complex clinical negligence mediation, trial was imminent and there remained a substantial gap between the parties’ Part 36 offers. Careful preparation, claimant participation, an impact statement and a direct apology on one aspect of liability helped address both the legal and human issues in the claim. By the end of the day, the parties had agreed settlement terms, after a previous joint settlement meeting had not succeeded.
The mediation process
A typical medical negligence mediation involves:
Agreement to mediate and mediator appointment
The parties agree to mediate, appoint the mediator and confirm whether the process will take place online or in person.
Pre-mediation discussions
The mediator usually speaks confidentially with the legal teams to understand the issues, attendees, sensitivities, documents and any non-financial matters that may need careful handling.
Exchange of documents and position statements
The parties exchange key documents and position statements so the mediator and the other side can understand the issues in dispute.
The mediation day
The mediator holds private discussions with each party. Joint sessions may be used with the parties’ agreement, particularly where explanations, apologies or impact statements need to be managed carefully.
Negotiation and issue testing
The parties explore liability, causation, quantum, costs and any non-financial outcomes that may assist resolution.
Settlement or next steps
If an agreement is reached, the outcome is documented through the legal representatives. If the case does not settle, the mediation may still clarify the remaining issues and support later resolution.
Maintaining control and confidentiality
The process is confidential and without prejudice. The parties decide whether to settle. The mediator facilitates the process and, where appropriate, helps the parties examine risk and options. The legal representatives remain responsible for advice and settlement authority.
This balance is important in medical negligence claims. It allows the parties to explore sensitive matters without losing the structure and discipline of a legal process.
Trusted By Legal Professionals
Proof that effective mediation is not only about settlement, but about how the process feels
FAQs
Yes, it can be. Mediation can help parties test liability, causation and risk, even where no admission is made. Occasionally, a defendant may offer a mediation with the object of discussing with the claimant and their legal team why they take the view there is no legal liability.
Yes, where the claimant wishes to do so, and the format is agreed. This should usually be discussed before the mediation so it can be handled carefully.
Yes. Where appropriate, mediation can provide a structured setting for apologies, explanations and learning to be discussed alongside the legal claim.
Attendance will usually include the legal representatives, those with settlement authority and, where appropriate, the claimant, and representatives of NHS Resolution and the appropriate NHS body, medical defence organisation, insurer or other relevant party.
Where appropriate, mediation can provide a setting to discuss learning, changes made or steps taken following the incident. This can be particularly important where the claimant is seeking reassurance as well as financial resolution
The mediation is conducted on a confidential and without prejudice basis, subject to the terms agreed by the parties. If a settlement is reached that will not necessarily be confidential but what happened at the mediation will usually remain confidential.
Make An Enquiry
Share a few details about the claim, the parties and the stage of the case. We will come back with a suggested ADR route and the next practical step.
Initial Conversation
Tell us about the claim, the parties and the stage you are at.
Mediator Selection
You select a suitable independent specialist mediator.
Preparation
Pre-mediation discussions help clarify issues and prepare the day properly.
Mediation Day
A structured process focused on helping parties reach resolution, often within a single day.