A new frontier in the boundary between professional and private life – solicitors’ undertakings
Medical treatment does not always go to plan. Mistakes can cause patients to suffer an injury. Some patients will simply want an explanation or an apology. Some will ask for financial compensation (or “damages”) for the mistakes made. All will want reassurance that such mistakes will not happen again to others.
For some patients, the injuries sustained are so significant that they have new needs that must be met, and this can create significant cost. Our job is to ensure that compensation is obtained to meet these costs.
If the negligent care was provided at an NHS hospital, then the NHS is the Defendant. Traditionally, the NHS was represented by the NHS Litigation Authority (NHSLA). The NHSLA has recently rebranded itself to “NHS Resolution” in order to emphasise its preference for early resolution instead of litigation.
One alternative to litigation is mediation. After a successful pilot scheme in 2014, NHS Resolution has appointed three bodies to provide independent mediation of healthcare claims.
What is mediation?
Meditation is a form of dispute resolution facilitated by an independent third party, (the “mediator”), who is appointed to listen to both sides of a dispute. The mediator’s discussions with both sides are confidential. The mediator's role is to identify the issues at stake and work towards finding an agreement that both parties can accept. Agreements can be reached during the mediation process or any time after.
The process is flexible and confidential. It can take hours or days, and involve individual meetings as well as joint meetings with all parties present. Mediation can occur at any stage of a claim, including before the issue of court proceedings.
What are the benefits?
Mediators can help restore or encourage dialogue between the parties. They identify the issues that really matter to each side. After making a complaint, a patient may want an explanation or apology, and the mediator can facilitate communications between the parties to encourage this “all round” approach.
Each party has confidential discussions with the mediator and can choose to disclose certain documents through the mediation process. The mediator will help the parties reach an agreement, which will remain confidential. Any such agreement must be signed by both parties if it is to be legally binding.
Neither party to any dispute wants to suffer the stress or expense of litigation or a trial. Both parties want a speedy and fair resolution of the claim. Mediation is an attractive way of resolving claims swiftly while also offering a resolution that is not solely focussed on compensation, for example by ensuring measures are put in place to prevent a repeat event.
Is mediation suitable for my claim?
Whether or not mediation is suitable depends on what you are seeking to achieve through the process. If it is just an explanation, or apology for the mistakes, then mediation could be very effective. However, if financial compensation is also required, mediation may be a good route to take but it is also essential to obtain legal advice in order to ensure that the outcome is fair.
The mediator’s focus is finding an agreement that both parties are content with, and not whether the agreement is fair to both sides. Without representation, a patient could be at a significant disadvantage and be left with no other avenue to explore because once the agreement has been signed, it is legally binding.
NHS Resolution may offer mediation at any time, including at the beginning of a potential claim. Expert evidence to understand the full extent of injury, and whether there is likely to be any deterioration, should almost always be obtained before entering into mediation involving any financial compensation.
Injured patients should discuss any request to enter into mediation with a lawyer to ensure that they are on an equal footing with the NHS. The NHS representative will have significant experience of the claims process and litigation, whereas most patients will not. A patient’s lawyer will have their best interests in mind, and be able to advise them of their rights in the mediation process, and guide them as to how their claim could be valued.
Our team have experience of mediation. If you would like further information please contact us on 020 7814 1200.
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