What happens in Mediation stays in Mediation

9 March 2021

The majority of personal injury and clinical negligence cases settle out of Court, without a trial. The appetite for alternative dispute resolution, including mediation, has seen continued growth in recent years.

The NHS endorsed mediation by extending its contracts with The Centre for Effective Dispute Resolution (CEDR) and Trust Meditation.  We have worked alongside both of these mediation providers to negotiate settlements for Claimants successfully.

Mediation is a conciliatory process. It allows both sides to set out their case in a more flexible environment. An independent mediator is jointly appointed by both sides and oversees the process.  The role of the mediator is to facilitate the resolution of the claim.

There are no strict rules when it comes to the format, duration or content of the mediation. The parties can decide which documents to disclose beforehand (for example expert reports or Schedules of Loss).  Offers can be exchanged throughout the process, which can take several hours or days.

The discussions taking place during mediation are privileged. This was recently reiterated in E (A Child) (Mediation Privilege), Re [2020] EWHC 3379 (Fam). The judge in this family case stated that:

“Parties must be free to discuss candidly all options for settlement and ‘think the unthinkable’ without fearing that their words will be used against them in any subsequent litigation”.

This means that litigants cannot later refer to comments or concessions previously made during mediation. This principle guarantees the confidentiality of the negotiations. Mediation is in effect a “bubble” outside the litigation.

It is important to obtain legal advice if you are offered mediation. Agreements made during mediation are legally binding and usually end the claim.  Claimants need to be advised appropriately to ensure that any compensation offered will be sufficient to meet their needs. In particular, claims involving life-changing injuries require expert evidence and appropriate legal advice to ensure that both parties are content with the settlement.

FURTHER INFORMATION

If you would like any further information or advice about the topic discussed in this blog, please contact Eurydice Cote or our Medical Negligence and Personal Injury team.

 

ABOUT THE AUTHOR

Eurydice Cote is an Associate in the Clinical Negligence and Personal Injury Team. She advises individuals who have sustained catastrophic and life changing injuries. Eurydice has helped clients who have sustained a range of injuries, including complete and incomplete spinal cord injury, amputation, orthopaedic injuries, gastrointestinal injuries and loss of vision.

 

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