NHS Dispute Resolution Service
Mediation within NHS-related clinical negligence claims
Trust Mediation won a competitive tender to supply mediation services to the NHS. It is not a part of, and is entirely independent from the NHS.
Clinical negligence claims involving NHS Resolution often require careful handling. The legal issues can be complex, the factual background may be sensitive and the parties may need to address both financial and non-financial outcomes. Mediation provides a confidential process in which these matters can be considered alongside the formal litigation framework.
Trust Mediation has many years of specialist experience in clinical negligence mediation and understands the practical context in which NHS-related claims are managed. The process is designed to support focused discussion, informed negotiation and appropriate engagement from the parties involved.
How mediation supports NHS Resolution claims
Mediation can assist where traditional negotiation has stalled, where a claim is high value or complex, where there are multiple parties or where the claimant seeks more than a financial outcome. It gives the parties a structured setting to discuss liability, causation, quantum, costs, apologies, explanations and learning where appropriate.
The mediator’s role is to manage communication, maintain structure and help the parties explore whether resolution is possible. Legal representatives remain responsible for advice.
Financial and non-financial issues
In some NHS-related claims, damages and costs are only part of the discussion. Claimants may want to understand what happened, whether lessons have been learned or whether changes have been made. Healthcare organisations may need a setting in which to provide information, explain their position or discuss learning without turning the mediation into an adversarial exchange.
Mediation can provide a controlled process for these conversations. It can also help separate non-financial issues from the financial negotiation so that each can be addressed appropriately.
Cases that may be suitable
NHS Resolution mediation may assist in claims involving serious injury, fatal incidents, disputed causation, contested liability, complex quantum, expert disagreement, multi-party issues or claimant concern about patient safety and recurrence. It can also provide a structured setting where an NHS defendant or healthcare organisation wishes to explain why liability is not admitted, while still engaging constructively with the mediation process.
The suitability of mediation depends on the stage of the claim, the information available and the objectives of the parties.
The process in practice
Agreement to mediate and mediator appointment
The parties agree to mediate, appoint a suitable mediator and confirm whether the mediation will take place online or in person.
Attendance and practical arrangements
The parties confirm who will attend, including the claimant, the legal representatives,, representatives of NHS Resolution and the appropriate NHS organisation, possibly a healthcare professional(s), or other relevant participants where appropriate.
Pre-mediation discussions
The mediator usually speaks confidentially with the legal teams before the mediation to understand the legal issues, sensitivities, documents, attendees and any non-financial matters that may need to be handled carefully.
Exchange of documents and position statements
The parties exchange key documents and position statements so the issues in dispute can be understood before the mediation day.
Private discussions and optional joint sessions
The mediator holds confidential private sessions with each party. Joint sessions may be used where appropriate, particularly where explanations, apologies, learning or impact statements need careful handling.
Negotiation of financial and non-financial terms
The parties explore liability, causation, quantum, costs and, where relevant, non-financial outcomes such as explanations, apologies or patient safety learning.
Settlement or next steps
If an agreement is reached, the terms are documented through the legal representatives. If the claim does not settle, the mediation may still narrow issues, clarify positions and support later negotiation.
Managing sensitive participation
Some claimants want to participate directly. Others prefer their legal representatives to speak for them. Some healthcare professionals may attend to provide context or to listen. The mediator can help plan participation, so the process remains respectful, structured and useful.
Where an impact statement, apology, explanation or patient safety discussion is contemplated, advance planning is important. It helps avoid misunderstanding and allows the right people to be present.
Case study: resolving issues beyond compensation
In one fatal child clinical negligence claim, mediation helped the family and Trust move beyond entrenched positions and mistrust. The process created space for explanation, apology, clinical learning and non-financial outcomes that litigation could not easily provide. The matter settled shortly afterwards, on terms that addressed more than compensation alone.
Commercial and procedural value
Mediation can support earlier resolutions, reduce litigation costs and help parties avoid the uncertainty of trial. It may also assist with the broader expectation that parties engage constructively with ADR where appropriate. For NHS-related claims, this can sit alongside the need to manage public resources, patient experience, the healthcare professionals involved, professional concerns and legal risk.
Trusted By Legal Professionals
Proof that effective mediation is not only about settlement, but about how the process feels
FAQs
Yes. Mediation can allow a defendant to explain its position on liability and discuss this with the claimant and their lawyers giving each side the opportunity to reflect on or re-consider the strengths of their case.
Where appropriate and agreed, mediation can provide a setting for discussion of learning, explanations and steps taken. At some mediations a representative of NHS Resolution’s Safety and Learning Service may attend.
Attendance depends on the claim. It may include legal representatives, claims handlers, NHS representatives, clinicians, the claimant and other relevant participants.
Yes. The mediation is conducted on a confidential and without prejudice basis, subject to the terms agreed by the parties. This allows sensitive legal, factual and non-financial issues to be discussed in a controlled setting. If a settlement is reached the fact of the settlement will not necessarily be confidential but what happened at the mediation will usually remain confidential.
The mediation may still narrow issues, clarify the parties’ positions and assist future negotiation. By the end of a mediation, where settlement is not achieved, the parties will usually be very clear on the issues that need to be prepared for trial.
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.