Claims mediation service evaluation

The service, launched in December 2016, sought to offer a cost-effective solution to healthcare claims that reduced the number of cases going to court – and the benefits are “overwhelming”, the report claims.

Whilst mediation (one of a number of methods of “alternative dispute resolution”) has long been a technique used by litigators, it has risen to prominence in the last few years in the wake of NHSR’s agenda to drive cultural change in the healthcare litigation environment. NHSR’s preference for mediation can be traced back to 2014, after a successful pilot scheme saw 81% of mediated claims settled. This prompted the launch of the current scheme, in partnership with the Centre for Effective Dispute Resolution (CEDR) and Trust Mediation Limited to mediate disputes arising from personal injury and clinical negligence incidents and claims. Costs Alternative Dispute Resolution (CADR) was appointed to mediate disputes arising from the recoverability of legal costs.

Key findings

• Settlements – 74% of cases mediated are settled on the day of mediation or within 28 days of the mediation date.
• More than just damages – injured parties and families are able to receive apologies and responses from representatives of Trusts, and are given a platform to air their thoughts in a less formalised setting than a court or with other forms of ADR.
• Early – Mediation as an intervention can be more effective if carried out at an earlier stage in the lifecycle of the claim.
• Costs – there has been a very low take-up of the claims mediation service in relation to costs disputes, where it is contended that the formality of mediation may be unnecessary and there is less emphasis on putting the patient at the heart of the negotiations.

The evaluation points out the trend towards settlement where mediation is undertaken at an early stage of the claim lifecycle. For instance 71.1% of claims are successfully settled within 28 days of mediation in the pre-action letter of response stage – higher than at any other point.

This may reflect that a certain value of claim is best suited to early mediation, particularly as the majority of claims mediated fall within the damages tranche of £50,001 -£250,000. Although the report notes that mediation is offered for all claims, irrespective of value, it follows that claims valued at over £1m may prove too complex to settle at such an early stage via mediation. Indeed NHSR claim it is interesting that the highest probability of a claim settling on the day of mediation occurs when neither claimant nor defendant counsel attend, however this may simply reflect that counsel are naturally instructed on the more complex, high-value cases.

Full statistics and information on the evaluation report can be accessed here. One striking statistic is that of the 6 claims mediated in 2018/19 that eventually went to trial, 3 of these were found in favour of the claimant, and 3 in favour of the defendant. Coincidental or not, these figures illustrate the often fine balance in clinical negligence claims, and the importance of having the ability to settle claims out of court with a figure that both parties can accept.

NHS Resolution has launched the procurement of its claims mediation panel for the next tender cycle, with a closing date of Monday 9 March 2020.

For further information, please get in touch.