Mediating Clinical Claims 9781526506405, 9781526506436, 9781526506429

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Mediating Clinical Claims

Mediating Clinical Claims Tony Allen Solicitor

Mediator and Senior Consultant to CEDR

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 41–43 Boltro Road, Haywards Heath, RH16 1BJ, UK BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 © Bloomsbury Professional Ltd 2018 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. British Librar y Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN:

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Foreword

For much of my career I have watched the struggle to establish mediation as an accepted method of resolving disputes in the alternative to judicial resolution. The late Philip Naughton QC, the much missed former head of my chambers, was a determined pioneer in the field, encountering not a little ill-informed opposition from professional colleagues as he went. Tony Allen has been another who has persevered, and, as this volume demonstrates, has largely triumphed in introducing mediation to one of its least receptive audiences, those engaged in clinical negligence disputes. It is telling that in the growing corpus of literature on the subject of alternative dispute resolution in general, and mediation in particular, I have been unable identify any work devoted to the law and practice of mediation in the field of clinical negligence in the UK. As Tony demonstrates, the use of mediation has finally begun to be accepted in this field, certainly in theory if not always in practice. Therefore his work is both timely and, just as importantly, useful to practitioners and others who become involved in the settlement of claims. Why is the professional reluctance to accept mediation as an effective means of settling disputes so resilient? In part, I am afraid, it is due to the cultural self-confidence of the legal profession in believing that the conventional means of resolving disputes by judicial determination remain the best. Such beliefs are not hindered by the fact that even after the Woolf and Jackson reforms, the most profitable outcome for lawyers on either side of a clinical negligence dispute is a contested trial. This is not to take sides in the endless arguments between those who speak for those who represent claimants and those who act for defendants about the reasonableness of the costs. To conduct traditional litigation properly, thoroughly and fairly is an expensive business, and I am afraid some of those who criticise the level of legal charges may be more motivated by a desire to reduce access to justice than to make such access more economical. As Tony correctly points out in this book, far too often the arguments that rage over the increasingly unmanageable burden of the costs of negligence claims on the NHS fail to consider the problem from the point of view of the most important interested party, the patient who has been injured by or on behalf of a State-funded service. Such a patient is ill-served by the present system. In theory, when something goes wrong and a patient is harmed, compliance with the duty of candour should result in their being informed swiftly of the fact, and, following a proportionate investigation, given an explanation for what has happened. It is not clear how often this happens, but even when it does, v

Foreword this is just an early stage on a very long road to any complete remedy for the patient. Such an outcome is not generally available without starting a formal claim. The legal process then requires the collection of evidence capable of use in court, experts’ opinions on issues of competence and causation, lawyers to prepare cases, and multiple trips to court for procedural directions. If attempts at settlement fail, the parties will arrive at a trial the result of which can turn on some unpredictable turns of events – an ill or misspoken witness, an expert who changes their mind without warning, or a judge who takes an unexpected view of some evidence or argument. Patients, or their families, whose future quality of life may depend entirely on a favourable outcome, have to endure the terrible stress of these uncertainties. Even if the case ends in ‘success’ with some form of financial compensation, it may not be sufficient or actually what is required to provide the remedy the patient wanted or needed. The process is no more satisfactory for those against whom claims are made. Healthcare staff, who are often genuinely distressed for their patient that a procedure has gone wrong, find themselves the target of professionally damaging allegations, with the obligation to try to remember what happened years after the event. The NHS body which employed them finds its reputation at stake and may wish to settle quickly, but has little control over the case because of the indemnity arrangements in the NHS. The system as a whole finds the costs of all this is an increasing challenge to its ability to provide good care to its other patients. In short, the present system is satisfactory for neither patients nor those who provide them with treatment. It requires a radical overhaul to bring together the various processes which are triggered by an untoward incident causing harm into a simplified, streamlined system for looking after the patients, identifying quickly what went wrong and why, and providing appropriate support and remedies. But we are a long way off that happening, and, in the meantime, we must encourage the use of methods of settling claims fairly, but more effectively and rapidly. Mediation is clearly an important tool with which to do this in many more cases than currently. It is a fallacy to argue that because specialist lawyers are capable of assessing and valuing a claim they do not require the assistance of a mediator. It is true that there are many excellent specialist lawyers available to act on both sides of any clinical negligence action, and they do in fact negotiate a settlement in the majority of cases. However, this often occurs only after protracted and stressful proceedings. Moreover, the alternatives to mediation, such as the round table meeting, or, worse, a lengthy exchange of without prejudice correspondence, or, worse still, a cosy chat between lawyers who are very familiar with each other, do little to assure the patient personally that their expectations have been properly addressed and met. Lawyers generally talk only of litigation risks, money, and the financial value of things. That is only to be expected, because it is only money that a court can award. Legal advisers will therefore spend

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Foreword little time exploring the non-pecuniary needs of the patient. These might include a face-to-face meeting to hear first-hand from the responsible clinician what happened, or to ensure that clinician understands quite what the patient has experienced. There may be treatment or care that the hospital might be quite willing to offer which would make an enormous difference. A new way of providing for accommodation needs not obtainable in court could be discussed. Above all, a mediation is a process in which the human beings most closely affected by what went wrong can be helped by an independent third party to come to terms with that, and feel that the outcome is something which they have all contributed to and that they have been given the chance to be heard. No negotiation between lawyers is likely to achieve that. So Tony’s book is more than welcome. It will provide a practical guide to the myriad of issues that arise in the setting up, conduct and completion of a mediation and will also stand as a testament to the real value mediations can bring to our current rather archaic methods of resolving claims in this difficult area. I can only hope that it is widely read and acted upon.

Sir Robert Francis QC February 2018

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Contents

Foreword v Acknowledgments xiii Introduction 1 Chapter 1 Party objectives in clinical claims What patients and their families want out of making clinical claims What healthcare professionals want when clinical claims are made The no-fault compensation debate

9 10 18 22

Chapter 2 Settlement processes and trials of clinical claims Different settlement processes in detail Direct negotiation Acceptance of Part 36 offers  Round table meetings  Mediation  A hybrid: independently-chaired RTMs (or is it really a mediation?)  Court trials of clinical claims

27 31 31 32 35 37 39 41

Chapter 3 The legal and procedural framework for clinical mediations in England and Wales 43 The general status of mediation and the agreement to mediate 43 Evidential privilege and confidentiality 44 A conflict between confidentiality and publicity? 47 Non-binding clinical mediation discussions and binding settlements 50 The neutral mediator as a potential witness 51 Mediation fees and costs 53 The place of mediation within the CPR 53 Pre-action conduct and the Pre-Action Protocol for the Resolution of Clinical Disputes 58 Halsey v Milton Keynes NHS Trust and pre-action and post-action mediation  62 Chapter 4 Coping with legal and clinical technicalities 67 The parties to clinical claims 67 A brief outline of court procedure in clinical claims 69 Pre-issue69 Post-issue  69 Negligence claims: breach of duty 70 Negligence claims: causation 72

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Contents Deciding cases on liability and causation only Negligence claims: damages Claims by a living claimant  Claims relating to a deceased patient  Interim payments of damages  Interest  Tax  Expert reports on damages  State benefits recoupment  Practical considerations for mediators on monetary claims Part 36 offers  Discounting  Valuation of future losses  Loss of a chance  Taking account of the risk of not succeeding  Obstetrics and gynaecology claims Claims under the Human Rights Act and the ECHR Expert medical opinions Chapter 5 Choices over clinical mediations: whether to mediate, when, where, and with which mediator? Whether to mediate a clinical claim? New areas in which to consider mediation: fundamental treatment choices and early stage catastrophic claims When should mediation be tried? Complaints processes and serious incidents investigations  After (or before) an inquest  Where? The ideal venue for mediations Who? Selecting the right mediator Mediation schemes  Mediator neutrality  The process of choosing the mediator  Questions to ask when selecting a mediator  The overall problem of timing Next steps

74 74 75 76 77 77 77 77 77 78 78 79 79 80 80 81 83 84 87 87 91 93 95 98 101 101 105 105 107 107 109 109

Chapter 6 Preparing for a clinical mediation 111 The initial stages of an agreed mediation 111 Pre-mediation preparation for mediators 111 Pre-mediation contact  111 Mediators and their own preparation 115 Pre-mediation preparation for claimant teams 116 Where the defendants indicate in advance that they do not expect to make an offer at the mediation  121 Should counsel be instructed?  121 Preparing claimants for possible compromise  122 Cases with multiple claimants  124 Co-operation with defendants in preparation for a mediation  124

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Contents Pre-mediation preparation by the defendant team 124 The route towards mediation  125 The needs and potential contributions of the defendant team  125 Denying liability  126 Clinicians  128 Trust Claims Managers and GP Practice Managers  130 NHSR and MDO case handlers and other decision-makers  131 Multiple defendants  132 Expert evidence: a problem for all parties at the mediation 133 Conclusion 134 Chapter 7 The mediation day The mediation day Practical venue arrangements for the mediator Private meetings with each party prior to any joint meeting The joint meeting – a key encounter The physical lay-out of an early joint meeting Conduct of the joint meeting Opening statements by each team Making or declining to make offers at a first joint meeting Ending a joint meeting Working with multiple parties Exploring options and risks Later process choices Mediators as evaluators? Converting thinking into proposals

135 135 136 138 144 146 147 149 153 154 155 155 157 158 159

Chapter 8 Mediating clinical claims with multiple parties Multiple defendants Mediations with multiple claimants The retained organs mediations Alternative models and bespoke process design

167 167 172 174 181

Chapter 9 Settlement: what is a ‘successful’ clinical mediation? Practicalities for settlement: written terms Mediating appeals in clinical claims Costs and funding The relevance of funding Private resources  ‘Before the event’ (BTE) insurance  Conditional fee agreements and ATE insurance  ‘Damages-based’ agreements (DBAs) and contingency fee funding  Legal Aid  How legal costs are controlled by the court Problems over costs at mediations: the global offer ‘Success’ in mediation and benefits conferred

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185 188 190 190 192 192 192 193 194 194 194 195 198

Contents Chapter 10 The future for mediation in clinical claims

201

Postscript 213 Appendix A CEDR Mediation Agreement

217

Appendix B CEDR Mediation Model Procedure, 2018 Edition

221

Appendix C CEDR Code of Conduct for Third Party Neutrals 229 Appendix D European Code of Conduct for Mediators

233

Appendix E Typical Tomlin Order in a clinical negligence claim 237 Appendix F Mediation settlement agreement in the same case (if required)

239

Appendix G Pre-Action Protocol for the Resolution of Clinical Disputes

243

Index 253

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Acknowledgements

While not in any way trying to evade my ultimate responsibility for everything that appears in this book, I do want to express thanks to a number of people who helped to save me from too many egregious errors, and who have encouraged me on my way towards its publication. I start with Sir Robert Francis QC, who agreed so willingly to pen the Foreword, and then felt obliged to apologise for the fierceness of the views he expressed in it! I hope that my book underlines the value and importance of lawyers in the mediation of clinical claims, by trying to explain mediation’s proper place within civil justice and resolution of clinical disputes, and by seeking to equip lawyers and their clients with the various skills that mediation requires of them. Sir Robert has chosen to take a considerably more trenchant view of the history of lawyerly attitudes towards mediation. Having myself often heard and read the past assertions of each ‘side’ of the clinical litigation legal divide that all fault lies with the other, it was refreshing to me to find an eminent practising lawyer, with his unparalleled record of trying to find ways to improve the National Health Service’s delivery of care, assert and accept a diagnosis of responsibility from within. His views are so directed towards moving everyone into a direction of which I heartily approve that I felt his very honest Foreword should stand untouched. I feel honoured that he felt the urge to express his thoughts so frankly in my book. My thanks also to those who read portions of my manuscript and who have helped me to improve it – Dr Karl Mackie of CEDR, District Judge Richard Lumb, Shona Crallan of INQUEST, and Alan Jacobs and Neil Goodrum, long-standing colleagues in the still relatively small world of clinical negligence mediation. Thanks are also due to CEDR for allowing me to reproduce its Model Mediation Procedure and Code of Conduct, and more generally for inviting me to work with them as a mediator of clinical and personal injury claims before, during and since my 12 years as a Director there, when I was given special responsibility both for trying to grow mediation use in that sector and also for placing mediation into its proper legal and procedural context within the civil justice system in the UK and in many other jurisdictions around the world. At last it seems that the work done through CEDR is bearing fruit. Thank you too to Andy Hill, Maria Skrzypiec and all the Bloomsbury team for their support and encouragement.

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Acknowledgements And finally I wish to express my thanks to all those many hundreds of people who were good enough to invite me into their clinical disputes as a mediator – claimants and their families, healthcare professionals, and lawyers of every ilk. Without you this book could not and would not have been written. It has been humbling to encounter so many people who found themselves involved in tremendously painful and worrying circumstances, which often have taken them to the heart of their identities as individuals or professionals. Both their courage and determination in facing agonising situations, and their generosity in inviting me in to see if I, and the process I run, might help them find a way forward towards resolution has never ceased to impress me. To those whose cases I have chosen to outline in this book, may I express thanks for their unwitting contributions, hoping that my efforts at changing the facts and anonymising them may mean that they do not even realise that they have been conscripted to help demonstrate true experiences which the confidentiality of the mediation process makes difficult to profile. References to them all as ‘C’ and the ‘DD Trust’ to preserve anonymity dehumanises them in a way that belittles the openness and frankness of feeling and thought which they demonstrated during their mediations. My thanks too to their legal advisers for the trust they placed in me, for not resenting my part in their cases (or at least managing to conceal it!) and for so often expressing appreciation about how the mediation process could deliver the best possible service to their clients. Coupled with the above I would like to end by thanking Julienne Vernon of NHSR and Peter Walsh of AvMA, who both kindly reviewed the case studies in this book and were generous enough to see the value of illustrations based on real cases rather than fictional or fictionalised accounts. They both made useful and practical comments about minimising risks of identification. The responsibility for taking this course remains with me, of course. But my hope is that the case studies in this book will bring a new degree of reality to the theory of clinical mediation practice.

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Introduction

Plenty of books have been written about the practice of mediation. A few have even been written about the relationship of mediation to civil law and practice, including one by this author. The intention of this book is to provide a thorough introduction to the mediation of clinical claims. It is not just a legal textbook intended to be read by claimant and defendant lawyers, but parts of it are also for claimants and their families to read, if they are sufficiently interested. Much of it may be of interest to those who handle the defence of claims for the NHS and privately-insured clinicians, whether as in-house complaints and claims managers in NHS Trusts, GP practice managers or commissioning groups, or within claims-handling bodies such as the Medical Defence Organisations or NHS Resolution. It is hoped that policy-makers, Trust Board members, senior NHS managers and even ‘after the event’ insurers might find it helpful too. There is some law, but there is also practical advice relating to setting up, preparing for and conducting mediations of clinical claims, and some musing on policy issues for the future. Not all of it will necessarily be relevant to every reader, so selective reading might be a good course of action depending on why information is sought. So why might a book specifically on the mediation of clinical negligence claims be appropriate, now, or indeed at all? A number of answers suggest themselves. Firstly, there appears not to be another one dealing with the subject in the round. Articles by academics and commentators have appeared from time to time, but the international literature is quite scant. Secondly, the timing seems right for several reasons, in England at least. Nearly 20 years have passed since the Woolf reforms led to the introduction of the Civil Procedure Rules 1998, with their novel concept of an overriding objective at their head. Yet there is still a sense of dissatisfaction about the way civil claims are conducted and funded, or, indeed, under-funded. Questions still arise about whether access to justice is truly available in ways that parties need or can afford. Such concerns are just as manifest in the conduct of clinical negligence claims as elsewhere in the English civil justice system, seen most clearly perhaps when looking at the crisis of clinical claims headlined for many years particularly by the National Health Service Litigation Authority (NHSLA, which has since April 2017 been rebranded and refocused as NHS Resolution, or NHSR) and similar figures which are published by some of the medical defence organisations (MDOs). When NHSR’s headline figures for reserving known claims and those which are anticipated is £65,000,000,000 – greater than the estimated GDP for a substantial number of UN member states – and their estimated proportion of what they expend on legal costs is over onethird of their total outlay, one can see that the efficient, economic and 1

Introduction acceptable resolution of clinical claims is a matter of pressing urgency for the cash-strapped NHS. As part of its examination into the best ways to achieve efficient, economic and acceptable resolution of clinical claims, NHSR (then still called the NHSLA) ran a mediation pilot scheme from mid-2014 to the end of 2015. This was the first move of its kind since the mid-1990s, when another mediation pilot scheme was conducted by the NHS – one which attracted little practical support or attention afterwards, though in many ways it was successful, despite its very limited uptake. However, as a result of the perceived success of the 2014–15 pilot scheme, NHSR then promulgated a permanent mediation scheme. A review of some of the lessons to be drawn from those two schemes, based on the experience of one who mediated a number of cases in both schemes, is perhaps likely to be useful. It may be all the more important, because very little happened between the end of the first pilot scheme and the second scheme by way of growth in the use of mediation in settling clinical claims. It is well worth asking why. What were the precise lessons to be drawn from comparing and contrasting the two schemes? How did they differ in context and how did such differences play out in practice? Was the first scheme a failure, properly leading to the conclusion that mediation was not a useful process? Or did it throw up advantages about mediating clinical claims which were not pursued, for good or bad reasons? And what can be learned from the new scheme that might add to what emerged from its predecessor so as to develop future thinking about how best to resolve clinical claims of all sorts? The legal context in which clinical mediation has grown so slowly also needs analysis and clarity. The leading case dealing with the general place of mediation in the civil justice system of England and Wales happens to have been an appeal relating to a clinical negligence claim – Halsey v Milton Keynes NHS Trust – probably the most discussed decision in the whole area of mediation (and it is discussed fully in Chapter 3). It is one that has attracted both praise and criticism since it was decided in 2005. In a number of significant ways its effect has been modified by subsequent decisions, without its actually being overruled or fundamentally reconsidered by the Supreme Court or a different Court of Appeal. A very significant (if strictly obiter) part of the Halsey judgment, which had a very considerable impact on subsequent practice about whether judges can actually order parties to use mediation, has been unofficially recanted in principle. Tying down what Halsey precisely means over a decade since it was decided is important for mediation in general, and in particular for the mediation of clinical negligence claims, which has always seemed likely to be a fertile sector for using mediation for reasons discussed in this book, and which probably led to the two NHS pilot mediation schemes being set up in the first place. Another reason for this book is to tackle the sheer lack of knowledge and experience of mediating clinical claims that was thrown up during, and 2

Introduction even despite, the recent scheme. It was not surprising that very few (if any) lawyers representing clients at mediations in the 1996–99 scheme had any previous experience of doing so: mediation of civil and commercial claims had hardly started in the UK by then, let alone claims involving clinical and personal injury, as the two main civil non-family mediation organisations in England and Wales were only established at the turn of the 1990s. All their early experience was with the mediation of commercial and construction disputes. Nor did any English mediators have any prior experience of clinical claims: indeed, by 1996 few English mediators had mediated much at all. But this should not have been true of the scheme started in 2014. Yet time and again, one or both solicitors acting for claimant or defendant still admit that this is their first experience of mediation, and this is true too of an appreciable number of barristers. So this book has a proper task to fulfil, in dispelling any ignorance of what mediating clinical claims really involves, giving guidance to claimants and their families, healthcare professionals and lawyers about what to expect and how best to prepare for such mediations, with an eye to extracting the maximum value out of doing so, sometimes in unexpected ways. Mediators who have yet to work in this sector may also gain assistance from some of the ideas discussed and experiences recounted. Lack of information and insight into the value of mediating clinical claims may not be confined to parties and their lawyers. An appreciable proportion of the current judiciary (certainly at the senior end) were not in private practice when mediation began to be deployed to any significant extent in the UK. They will never have had the opportunity to represent a client at a mediation, and will never have seen the dynamics of the process from the inside. Furthermore, very few judges, whatever their seniority, will have been involved in clinical negligence mediations, as they have been so relatively rare over the years, and have only ever involved a small proportion of the legal profession. These proportions may well change over the years. But once elevated to whatever bench they attain, judges are out of daily practice, and while of course they keep close observation on how litigation is conducted, especially through the toils of costs budgeting and case management, this is bound to be at second hand. An additional complication is that procedural judges rarely discover that mediation has settled claims where mediation was proposed, and trial judges will only try cases where mediation was either not used at all or did not lead to settlement. Giving the opportunity to judges to understand how mediation works, and thus to appreciate fully when they might properly influence its use and penalise failure to use it should be of help. If this book finally dispels any lurking judicial misunderstandings as to whether mediation compels parties to settle, or whether a dispute is too intractable or a given gap is too huge for it to be capable of closure at mediation (both views having been expressed by various judges on occasions), it will have served a useful additional function. Debate about mediating clinical claims has not been entirely absent in the last 25 years. Without aspiring to lofty academic heights, this book seeks 3

Introduction to review some of the international literature on this topic and to draw from it lessons which may be relevant today for this jurisdiction. There has been one very high profile piece of litigation in which mediation was dramatically and successfully deployed in parallel with complex group litigation on novel law, being the multiple claims concerning the retention of children’s organs following post mortem autopsies by hospitals all over this jurisdiction. A review of what went on in those cases may give rise to useful and transferable learning about mediating group litigation, mediation’s role in dealing with uncharted legal territory both before and after judicial determination, and the significance of non-monetary extralegal outcomes in generating satisfaction for claimants, and perhaps also healthcare professionals. An abiding problem for establishing the credibility of mediation as a process arises from the principle which provides the cornerstone of its success, namely the confidentiality of what passes between parties in preparation for and during a mediation. Generalisations and discussions of principle have obviously proved unpersuasive to an extent about this most personalised and practical of dispute resolution processes. Even anonymising what happened at real mediations may not seem satisfactory. Mediators can only express regret at being hampered by this fundamental principle, which makes mediation effective in not being able to profile the successes of the process which they offer. The mediation world must persevere with the protection of confidentiality, for without it the mediation process might well not work, and participants might well not be willing to say some of the valuable things that experience has shown are greatly appreciated by those who say and hear them. This book will recount what happened during a number of mediations to bring the mediation process alive. Steps have been taken to alter the facts and anonymise every case study included, and not to include any material that was kept confidential to either party during the mediation. Even the participants in a particular mediation will almost certainly not recognise their case after the passage of time. It would have been an immense labour to write to every party to approve the version of their case that is included here, and it is hoped that they will be generous enough to donate the broad outline of their case for learning purposes. But the boundaries of confidentiality need careful analysis and scrutiny. Many claimants bring claims to highlight what they feel went wrong for them during the healthcare they received. One of the outcomes they value is knowing that lessons have been learned from what went wrong, and that it is less likely that anyone else will go through the same experience. They may well want to tell family and friends about what was decided, or be tempted to publish outcomes further afield. Any fetter on publicising what was agreed at an apparently confidential mediation risks generating resentment. Yet healthcare professionals, whether clinicians or managers, may instinctively feel unhappy about publicity being given to the settlement of a claim against them or their trust. Chapter 3 contains a full discussion

4

Introduction of the issues of confidentiality as they relate to clinical claims, in the hope that both claimants and defendants will know and feel comfortable with where things stand, and can make rational and co-operative choices where choice arises. Does using mediation reduce the cost of clinical claims? This is a crucial question for any who seek to reduce the investment in legal fees, which defendant bodies clearly and repeatedly argue are far too high. Lawyers understandably seek to represent clients and make money from work in the clinical sector because they enjoy this specialisation, though there are reports in recent years of new and less experienced law firms entering the sector in the primary hope of making money in it, when other avenues such as road traffic and liability claims have perhaps become less profitable through compulsory pre-issue use of the online portal for claims of up to £25,000. Mediators are in no position to assess costs savings, and this book does not try to do so. The data for such an assessment is reposed largely in the databanks of the NHSR and the MDOs and their panel lawyers, and there are very few studies that have proposed a persuasive template for contrasting the costs of settling at a mediation with the costs of settling the same case later in its life at some unspecified time. With so few trials of clinical claims taking place, it is clearly not right to compare the cost of mediated settlements with the costs of a concluded trial. If asked, mediators can do little more than assert forcefully that more regular and earlier use of mediation to try to settle claims must be likely to deliver huge costs savings. The discussion in the Mulcahy report about this topic is sadly long out of date, with the reduction of legal aid and the fluctuations in the conditional fee agreements regime since 2000. NHSR presumably did some work on showing that mediating clinical claims made economic, as well as procedural and personal, sense following the 2014–16 pilot, but so far this has not been published. Reference to the portal leads naturally on to another strong current reason for reconsidering ways of resolving clinical disputes, namely the online court proposals made by Lord Briggs in his Civil Structure Review, which have been broadly accepted by the Ministry of Justice, and have led to an implementation plan and budget stretching until 2022. Whether clinical claims of lower value will have a place in the thinking he has provoked, if not within his actual reforms themselves, needs to be worked out, especially as the NHS Pilot in 2014–15 showed the usefulness of nonmonetary outcomes in lower value clinical claims. But there is, at least, a proper discussion to be had now. The debate must be over the best way to settle cases, when viewed through the eyes of the parties. In England and Wales settlement is by far the most frequent way that clinical claims are ended. Trials of such cases are very rare when contrasted with reported claims, although they occupy a considerable proportion of court case management and cost budgeting time. What parties (both claimants and clinicians) really want is in itself a very important subject for discussion and clarification. It by

5

Introduction no means necessarily accords with what their lawyers think they want, or with what the civil justice system offers. An honest and open look at this, and at some of the research into these matters, is timely, and will enable parties and their advisers to make informed decisions as to how to approach settlement discussions by the most appropriate process. Many lawyers advise their clients (or perhaps simply decide to do so without fully discussing other options with their clients) to utilise so-called round table meetings (RTMs), also called joint settlement meetings (JSMs). This book will use the acronym RTMs, as although settlement is hoped for from such meetings, there is no guarantee that it will be achieved; using the term JSM may mislead lay parties – and even judges – as to the purpose and outcome of the meetings. Of course a mediator’s fee is saved by an RTM, but other advantages may be lost. This book examines what goes on at each type of settlement process and the differences in legal framework between them, and also between other settlement processes and court-room trial, so that informed choices can be made to suit the parties, who can so easily lose control of their own claims and defences to professionals. There are some who have dismissed the efforts of those involved with mediation development generally, or in specialised sectors such as clinical negligence, as being ‘zealots’ determined to undermine the civil justice system to promote their own philosophical or even financial ends. They have said loftily that ‘mediation is not a panacea’, a metaphor drawn from the concept of health, and a term of somewhat ironic significance in relation to clinical claims, where by definition someone thinks that they did not benefit from the treatment given or withheld. This book looks at the extent to which mediation is or is not a panacea, and simply asks readers to remain open-minded about what it can achieve, about what other processes cannot offer, and perhaps to test it out by experience. Might one, for instance, properly describe the civil justice system itself as offering a ‘panacea’, say to the family of a cerebral palsy claimant who fail to prove their case, and fail to get access to millions of pounds of damages? Can civil justice claim to be a true ‘panacea’ if the courts have no power to award the very thing that, research shows, is wanted by a large majority of claimants? Apology, an explanation of what went wrong, a review of lessons learned, and reassurance about future treatment for themselves – these are all known to be high priorities for claimants, rather than mere compensation based on a retrospective review of law and expert evidence as to whether a given breach of duty caused damage. ‘Panacea’ needs careful definition in this context and restraint in its use. This book will examine which cases are – or are not – suitable for mediation or other methods of resolution. It will also examine whether the more useful questions may be whether a case needs mediation and whether it is ready for mediation, filtered through the eyes of the parties themselves. Readers of this book will have to forgive the determination of this author, who has been involved now for over 20 years in practising and advocating the wider use of the mediation process for clinical disputes, for being 6

Introduction persistent in engaging in discussion over its merits. It is hoped that this book does not read like a tract penned by a ‘zealot’, but as an objective examination of this subject based on experience, which has over the years (perhaps sometimes uncomfortably for the legal profession, to which the author still belongs) strengthened the feeling that clinical claims should belong essentially to claimants and their families on the one hand, and healthcare professionals and managers on the other, as backed by the NHSLA and MDOs. We all need to be sure that the clinical claims system delivers what users really want, and that any defence of the status quo is not based on self-interest. Skilled lawyers are vital to the success of clinical mediations. Their clients need experienced and robust input from advisers as to whether it is in their interests to accept any terms that may emerge during a mediation. This is not something a mediator can or should provide. Clients also need a strong, accessible and efficient court system, which firmly encourages, and perhaps orders, the use of mediation as a way of delivering advantages in both process and outcome that the courts cannot offer. The court system must yet remain available to give judgment where parties cannot mutually agree an outcome and need a court decision to rule on their differences. Now that a degree of systematic use of mediation for clinical claims has begun to happen, a book to encourage the development of the best skills and strategies should be timely. But this book argues that it is not enough simply to think of the place of mediation in the context of formulated legal claims. Frustration is repeatedly articulated at such mediations by both claimants and clinical staff over how long it has taken to reach the point of convening a meaningful discussion about what is said to have gone wrong. It is often said that the only reason the claimant has resorted to legal process is because no other approach seemed to catch the attention of the NHS. There has to be a better and swifter way of dealing with serious complaints. This book discusses the value of mobilising processes in which a neutral person intervenes to facilitate dialogue, in order to make difficult conversations about clinical issues both possible and timely, in the hope that where patients and clinicians do avail themselves of help to have such conversations early enough, at least some of the need to resort to legal process may be dissipated, and acceptable – even satisfying – resolutions may be found for both. Many of the themes touched upon in this introduction will reappear later for more detailed discussion. The last chapter looks at the future and how this might be shaped by a number of initiatives which impinge on both clinical claims practice and the development of mediation. Many of the examples given are about claims against NHS Trusts, hence much of the terminology used is about Trust Managers, NHSR case managers and so on. The issues in this book are, of course, just as relevant to those who are insured by the MDU, MPS, MDDUS and other insurers – general practitioners, and doctors working privately. Substitution of job titles to

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Introduction suit GP practices, private clinics and so on should be relatively easy for those interested in those subsectors of healthcare provision. This book is about clinical negligence claims as conducted in England, and law and practice as it impinges on English cases. The same procedures and cases apply in Wales, but its health system and claims system are unique to Wales. Scotland and Northern Ireland have their own civil justice systems too, as well as their own responsibility for the politics and economics of healthcare provision. That goes without saying in the Republic of Ireland too, although the author has mediated healthcare cases there in recent years, and mediation of clinical claims is beginning to be a regular feature of Irish dispute resolution. Nevertheless, it is hoped that much of the book will be of wider application than England alone. Mediation transcends jurisdictional boundaries with ease, slipping into the shadow of any civil justice system in which it operates. English law and procedural rules are stated, so far as possible, as at 1 March 2018.

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Chapter 1

Party objectives in clinical claims

Lawyers and judges may argue that the obvious place to start looking at clinical claims is the forum in which they are ultimately decided, namely the court system that offers an enforceable resolution process through a public trial, this effectively being the constitutional right for every patient who sues and every healthcare professional or body which defends claims. But this is arguably not the right starting point. This is so particularly because, as Professor Hazel Genn points out in her 1995 essay Access to just settlement: the case of medical negligence1, as part of the thinking in response to the Woolf Reports which led to the Civil Procedure Rules in 1998: ‘The rules of litigation are geared toward preparation for win or lose adjudication’. It is surely right that any book dealing with choices over how best to resolve clinical claims ought to start with the needs of the parties. In the clinical sector, the parties are the claimants and their families, and the healthcare professionals and managers at all levels who become involved in the claims. One reason to start with them is because, as we shall see in Chapter 2, the vast majority of clinical claims are actually settled, and never get to trial. But matters need to go back even further in the chain of relevant events. There is also the question of claims that are not formally made, about which Hazel Genn rightly expresses concern: the huge number of people who do not seek to make claims, put off by various factors related to funding, or complexity in the law and procedure. Perhaps they might even be motivated by inherent reluctance to sue the NHS, despite feeling that some kind of redress would be welcome. We need to see why patients complain and bring claims, and whether their reasons and objectives for doing so are adequately met by the processes offered to them. We also need to look at how those same processes impact on healthcare professionals, and whether they are dealt with fairly by them. In addition, we should look at whether, and if so what, professional disadvantage accrues when clinicians are sued. Could this be alleviated without disadvantaging claimants instead? So we need to examine how the complaints system handles, or perhaps mishandles, patient and professional concerns; whether mishandling or non-handling results in legitimate concerns being either dropped out of frustration, or turned into 1 In AAS Zuckerman and R Cranston (eds), Reform of Civil Procedure: Essays on ‘Access to Justice’ (Clarendon Press, 1996).

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Party objectives in clinical claims claims that may or may not ever have been brought if they had been dealt with appropriately at an earlier stage. This book, written by a lawyer and mediator who is decidedly not an academic, does not pretend to be an academic review of international experience on these topics. Its main purpose is to look at mediation as a practical process. But a brief, and certainly non-exhaustive, look at the beginnings of process theory relating to clinical complaints and claims is perhaps useful as a basis for a closer examination of some of the sociolegal research done on clinical claims in England and elsewhere.

What patients and their families want out of making clinical claims For many years it has been suggested that what patients want out of making claims, and what they can achieve through mediation, is far more than just monetary compensation (which of course is the only remedy provided by the courts). In a US article in the Journal of Dispute Resolution in 1990 – about the same time as civil non-family mediation was beginning to be established in the UK, but two decades after mediation began to grow in the USA – Andrew McMullen laid out an early case about matching what patients are identified as wanting, with what mediation might supply: ‘The view here is that mediation allows both the doctor and patient to examine the underlying conflict through direct communication in an attempt to satisfy the underlying needs and interests of the parties; rather than allowing the current court system to put “a band-aid of dollars on festering wounds of anger and hostility”. This process increases each party’s awareness of the interests and needs of the other and may even increase the accountability of the physician towards the patient. In addition, the process of mediation may improve the future relationship between the parties through achieving a new level of understanding of the other party’s interests and needs’2. In a 1991 review of dispute resolution processes for clinical claims in the US, Catherine Meschiewitz wrote: ‘Increasing evidence suggests that parties want something in addition to a monetary payment. Plaintiffs may want to know why something happened. They want to be heard and have an opportunity to express their anxieties over what has happened, and at times they want an apology. Occasionally they just want to know “it will never happen again”. Mediation, by providing a means for a doctor to explain why something was done the way it 2 A McMullen, ‘Mediation and Medical Malpractice Disputes: Potential Obstacles in the Traditional Lawyer’s Perspective’ (1990) 2 Journal of Dispute Resolution 5.

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What patients and their families want out of making clinical claims was, conceivably offers an inexpensive method of resolving such claims without litigation’3. In fact, a check of the footnotes for this assertion reveals no actual qualitative research upon which it was based. US academics were ready to examine the USA’s medical malpractice crisis in the 1980s and 1990s, characterised by soaring claims and insurance premiums for doctors, huge jury damages awards, defensive medicine, falling numbers of practitioners in dangerous disciplines like obstetrics and gynaecology and anaesthesia, and litigation delays. A  number suggested that mediation might be a solution. Trial processes differ appreciably between the USA and the UK, and not much of that US learning is directly transferable across the Atlantic, where such features as detailed pre-trial cross-examination (‘deposition’) of witnesses and experts, big percentage contingency fees, caps in some States on noneconomic losses (ie damages for pain and suffering) and in others caps on economic losses such as treatment and care costs prevail. Developments in alternative process have been haphazard across the States, with preclaim panel screening processes in some, mandatory pre-issue mediation in others and mandatory pre-trial mediation in yet more, with ‘mediation’ taking a variety of forms, both evaluative and facilitative; and using a variety of neutrals, whether lawyers, retired judges or mixed co-mediation by doctor and lawyers. Perhaps the most powerful underlying influence is the fact that, subject to certain limited exceptions, every dollar of damages paid by order of court or in settlement of claims is recorded against the name of the physician in question on the National Practitioner Data Bank (NPDB), and will remain available to hospital employers and insurers in assessing the risk profile of that physician. But even 20 years after the article quoted above, in a meta-analysis of ADR and clinical claims research by Sohn and Bal, published in 2012 in Clinical Orthopaedics4, the authors were still remarking despairingly on the medical malpractice situation, and the positive impact of mediation and other forms of ADR as useful settlement processes when contrasted with tort litigation. They argue that tort reform is still necessary, with jury awards doubling between 2001 and 2002, and the costs of defensive medicine and liability insurance still spiralling upwards. They comment favourably on ‘disclosure and apology’ programs, where research at such centres as in Colorado and at the Veterans Hospital, Lexington, Kentucky, which embarked on a deliberate program of disclosure and apology for errors, demonstrated a marked reduction in damages paid out, ‘suggesting that ADR substantially reduces the payment per claim’. But it is not all about trying to save money: it is also about identifying and delivering what patients actually want. They draw attention to one survey of trial plaintiffs, which showed that ‘money was only the third most important reason 3 C Meschiewitz, ‘Mediation and medical malpractice: problems with definition and implementation’ (1991) 54(1) Law and Contemporary Problems 195. 4 D  Sohn and S  Bal, ‘Medical Malpractice Reform: the Role of Alternative Dispute Resolution’ (2012) 470(5) Clinical Orthopaedics and Related Research 1370.

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Party objectives in clinical claims for suing, after an apology and information about why the adverse event occurred’. As to mediation itself, the same survey asserted that: ‘mediation boasts extremely high satisfaction rates among both plaintiffs and defendants, approximately 90%. The informal process allows both parties to speak for themselves, which is understandably cathartic for both’. They note that the recording of settlements by the NPDB, even where mediated, has a chilling effect on settlement processes such as mediation. Fortunately that is not a problem in the UK, where no such system exists. So with 50 different State legal systems, and all kinds of different solutions being tried, the position in the US is really too diverse to impart much relevant wisdom to England and Wales. When it comes to qualitative research relevant to England and Wales as to how mediation works and whether it delivers what participants want, there is limited material available, but even so, two studies are worth considered attention. The first is an English study of a mediation pilot scheme commissioned by the Department of Health and the NHS at the time of the ferment over the Woolf reforms. The research review was led by Professor Linda Mulcahy and her report was eventually published in 2000, though the mediations were in 1995–98. The second is a qualitative research study into mediations of clinical claims in Canada by Professor Tania Relis, published in 2009. The parallels between their findings are striking and are worth underlining. Professor Linda Mulcahy’s report Mediating medical claims: an option for the future?5 was a review of an NHS mediation pilot scheme launched in April 1995 as a response to perceived shortcomings in the way clinical claims were then being handled. Five main issues were identified: (1) defensiveness encouraged by existing procedures; (2) dissatisfaction among plaintiffs over process and outcome; (3) the inaccessibility of the civil justice system; (4) delays in the management of claims; and (5) the costs to the public purse of claims management. It goes without saying that the 1990s were a time of upheaval in civil justice generally and in relation to clinical claims in particular. Lord Woolf published his Interim Report Access to Justice in 1995 and his final report in 1996, and one of the areas that especially concerned him was the way clinical claims were being conducted. He formed the view that it was in the area of medical negligence that the civil justice system was failing most conspicuously to meet the needs of litigants. 5 L Mulcahy, M Selwood, L Summerfield, A Netten, Mediating Medical Negligence Claims: an Option for the Future? (Stationery Office, 2000).

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What patients and their families want out of making clinical claims The imaginative step of running an NHS mediation pilot was taken long before the Civil Procedure Rules 1998 were introduced, in response to a different litigation culture and regime altogether and in an atmosphere where reform was seen to be essential. The NHSLA was set up in 1995, and this new Special Health Authority initiated the centralisation of clinical claims handling, bringing into its orbit all the claims that had been handled by NHS bodies separately, until then mostly utilising local law firms. NHSLA set up a small panel of national and regional firms, instead of the 100 or more firms of all sizes that had been working for their local NHS Trusts. There were then only two mediation provider organisations in England – ADR Group and CEDR – and these had been founded only five or six years previously, to handle civil non-family claims. At that point, there had been relatively few commercial mediations, and virtually none in the personal injury and clinical negligence sectors. Action for the Victims of Medical Accidents had been set up in 1982, however, and by then had made progress in establishing specialist claimant law firms, panels of experts and it was making an appreciable impact on law reform in the clinical arena. Its first Chief Executive, Arnold Simanowitz, and a distinguished mediator, Henry Brown, published an article in 1995 entitled ‘Alternative dispute resolution and mediation’6, setting out alternative ways to resolve medical disputes, in which they said: ‘Traditional lawyers and negotiators sometimes query the value of impartial intercession, pointing out that they are capable of conducting a case and negotiating a settlement without this process. This view certainly has some validity. When constructive discussions and negotiations result in parties arriving at an agreed settlement there is no need for neutral intervention as offered by ADR processes. Unfortunately, in a significant majority of cases this is not the reality, at least until a very late stage, when time has passed, costs and risk have escalated, and both sides have had to experience much anxiety and emotional distress. Mediation and other forms of ADR can bring a new dynamic into the situation at any stage, with established procedures and skilled practitioners to help in those cases which cannot easily be settled by way of ordinary bilateral negotiations’. These words are as true now as they were in 1995, as is their final paragraph, suggesting that use of these processes allows for ‘any permutation of fact finding, explanation and dialogue, facilitation with communications, assisted negotiation, neutral expert settlement guidance, accountability and any other factor that parties might consider to be important. Settlement terms can, and sometimes need to, include not only financial aspects but also 6 A Simanowitz and H Brown, ‘Alternative Dispute Resolution and Mediation’ (1995) 4(2) Quality in Healthcare 151.

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Party objectives in clinical claims a form of words that parties find mutually acceptable, in a way that conventional litigation cannot achieve’. But it was out of this dynamic that the first NHS pilot emerged. It ran in two NHS regions, against considerable odds, over a period of three years, during which time only 12 cases were actually mediated. Another 14 cases were in process of referral to mediation when the scheme had to end for evaluation. The evaluation looked not just at the mediated cases, but also surveyed levels of (dis)satisfaction with the existing claims system, and investigated what claimants and clinicians actually wanted. One of the Mulcahy Report’s striking findings was that claimants usually seek non-monetary options in priority to compensation. Chapter 2 of her report shows that before making a claim, claimants want (in order of preference): an admission of fault; prevention of recurrence; an investigation; an apology; understanding by the defendant; information; a demonstration of concern; and only then money7. Re-tracking these objectives towards the end of the claims process, money crept up in priority (perhaps because of legal advice that this was the main or only remedy deliverable by litigation, though that is not a point she makes) but the other objectives remain importantly in place. She also shows that many of them were felt not to be delivered, suggesting that ‘a pool of needs remains unmet by the litigation system’, despite still being desired8. She comments: ‘It is not surprising that all claimants do not receive financial compensation. What is surprising is the number of “soft” remedies, such as an explanation, that they do not receive, whether or not their case is substantiated. Regardless of whether the claimant’s case can be proven, the figure reveals that undue emphasis may be placed on risk avoidance strategies at the cost of effective, responsive and fair claims management’. Indeed the most telling statistic of all in her report derived from her preliminary survey, is that 70% of claimants surveyed who had been through the clinical litigation process were totally or very dissatisfied with the outcome they achieved, even when they received compensation9. Mulcahy’s analysis was of an extremely limited sample of 12 cases. She assessed the successes of the mediation pilot, seen by lawyers for both sides as a process which reduced issues and broke deadlock, saved costs, was quicker, delivered non-legal remedies, and enabled client participation10. Participants’ views are not tabled but reported discursively, mainly finding pleasure at being able to participate more, with a potential for catharsis, the flexibility of the process and its privacy 7 Mulcahy, fig 2.1, p 12. 8 Mulcahy, para 2.2, p 13. 9 Mulcahy, para 2.13. 10 Mulcahy, p 73, table 6.1.

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What patients and their families want out of making clinical claims (except where otherwise agreed). All the cases settled with payment of compensation, except one, in which a mother discovered information about where her miscarried foetus had been buried, which she accepted as the only outcome she sought. All of them effectively settled, exceeding all expectations. Satisfaction with participation in the mediation process was generally high, perhaps surprisingly so in view of the unfamiliarity of the process. The Relis review, Perceptions in Litigation and Mediation was published in 200911. This study looked at 64 mediations (roughly the same number as were in the 2015–16 NHS pilot). Some were conducted within a regulatory framework for clinicians, but many of them had been mandated by Ontario’s civil procedure rules. She conducted interviews with 17 claimants12, 13 defendant clinicians, 27 claimant lawyers, 40 defence lawyers and 29 mediators. The review looked at what claimants and clinicians and their lawyers perceived to be each other’s objectives in initiating litigating and mediating in this sector, and how far those perceptions differed from reality. Her primary finding was that lay parties – whether claimants or clinicians – had ‘a whole host of non-fiscal [ie  non-monetary and extralegal] objectives that are not recognised by many legal actors in their cases’. She found a rather unholy alignment between lawyers for both claimants and defendants in thinking that claimants primarily seek monetary compensation when making and even mediating clinical claims. She also found a surprising alignment between claimants and defendant clinicians, both of whose objectives are found to be strikingly similar and much softer – the chance to communicate, get information, seek and give apology and review change to prevent recurrence of what went wrong. The different perceptions held by lawyers as one group and lay parties as another, she concludes, are significantly and seriously mismatched. Her findings as to claimant objectives are tellingly similar to Mulcahy. They were (in order of priority) admission of fault and reassurance that the fault would never happen again (equal at 59%); answers (53%); retribution and apology (equal at 41%); money as a secondary aim (35%); money as a primary aim (18%); money solely (6%)13. Contrast these (not a comparison made by Mulcahy) with the fact that doctors’ lawyers surveyed thought that money alone was 90% of claimants’ aims, then 10% answers to questions14; hospital lawyers thought 67%, then 25% answers15; and claimant lawyers thought 67% – far more than answers or other remedies16.

11 T  Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties (Cambridge University Press, 2009). 12 Both Relis and Mulcahy use the terminology ‘plaintiff’, which I  have modified for a post-CPR  English readership to ‘claimant’. This should be taken to encompass patient claimant(s), and their families where the patient died or lacks capacity. 13 Relis, p 43, fig 4. 14 Relis, p 37, fig 1. 15 Relis, p 38, fig 2. 16 Relis, p 40, fig 3.

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Party objectives in clinical claims Relis looks less at the perceived ‘successes’ of clinical mediations (and not at all at settlement rates) and more at what parties perceived to have happened at the mediation. Here she finds a degree of ‘lawyerisation’ of the mediation, with lawyers wanting to use the mediation process tactically for promoting their client’s legal case and trying to weaken their opponent’s perception of their chances of success, assessing the strength of an opposing party as a witness. Both claimants and doctors had very different hopes for the mediation process, such that they seemed indifferent as to whether the process was mandatory or voluntary17. All doctors (100%) and 88% of claimants wanted to give or receive an apology, and remained of the same mind, even when these were not forthcoming at the mediation. Relis found some evidence of irritation among lay parties about the way the lawyers seemed to take over the mediation process. Lay parties in Canada too preferred a facilitative style of mediator, whereas lawyers on both sides wanted a mediator respected sufficiently to be capable of openly evaluating the strengths and weaknesses of each party’s case and thus guiding the outcome. Both these pieces of research point clearly to the fact that lawyers as a group (whether acting for claimant or defendant) have different aims and preferences in litigation from their clients when litigating and mediating clinical claims, even if those different needs and preferences do run in parallel. Some such differences are hard to reconcile, just as parallel lines never meet. The two reports – conducted nine years apart – additionally point out that civil justice systems simply do not attempt to offer claimants and healthcare professionals what research firmly indicates they really want. Civil justice is concerned with discerning whether there has been a breach of professional duty that caused damage to a patient, based on an appraisal of past events and only considering future needs where losses are alleged to have arisen as a result of the breach of duty, awarding compensation accordingly. Neither through its pre-trial or trial procedure nor (if a claim succeeds, and certainly not if it fails) through its outcomes does the civil justice process ensure that opportunities arise to deliver some of the other things that parties regard as vitally important. This is despite the fact that the first general aim promulgated by the revised Preaction Protocol for Clinical Disputes is said to be: ‘to maintain and/or restore the patient/healthcare provider relationship in an open and transparent way’18. It is very difficult to discern how the English civil justice system begins to deliver that general aim, other than by facilitating judicial decisions generated by a highly adversarial process.

17 Lawyers in the Canadian jurisdiction had been inured to mandated mediation by the time of the Relis research, but still complained that it was mandated by the court too early in the litigation process. 18 Para 2.1(a).

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What patients and their families want out of making clinical claims Relis also notes that lawyers and their clients on both sides have different views about whether clinicians should attend mediations to meet with claimants. Lawyers are found, by her research, to feel that clinician attendance at a mediation subverts their legal and tactical objectives for the mediation, whereas lay parties, whose objectives significantly include communication, explanation, reassurance of changed practice and even the giving or receiving of an apology, unsurprisingly strongly favour the presence of healthcare professionals. English experience of the attendance of doctors during the recent NHSLA scheme has been relatively rare, but almost without exception successful. It is usually productive both for clinicians themselves as well as for their patients and the families of patients. The claims process has often prevented this, by virtue of the litigation norm of arms-length conduct. Relis’s chapter about mandatory, as opposed to non-compelled, mediation19 (considered in Chapter 10) suggests there is no basis for fears that mandatory mediation works any less well than purely voluntary engagement. Relis includes some interesting analysis of how the gender of lawyers, parties, doctors and mediators might affect attitudes and actions in litigation and mediation. This may be a topic for the future in this jurisdiction, but it cannot escape the attention of mediators experienced in the clinical sector in England and Wales that there is a high proportion of women among legal teams for both claimants and defendants. So does mediation as conducted in England deliver non-compensatory benefits shown by this research to be so sought by lay parties? And how does the English experience differ, if it does, from the Canadian experience encountered by Relis? There is no published research from the 2016  NHSLA pilot, so any comment is bound, to some extent, to be impressionistic and anecdotal. This book asserts that mediation as currently conducted in clinical claims in England undoubtedly does much to supply that which bringing a claim in the English civil justice system cannot or does not supply. It is able to deliver that first general aim of the Pre-action Protocol, quoted above. In virtually all mediated cases, claimants have placed considerable value on the opportunity to participate personally to whatever extent they choose; to have their say about what they feel about what went wrong, unfettered by the law of evidence as to relevance or admissibility or the fear or embarrassment of being in a witness box in open court; to be able to engage with representatives from the NHS body they perceive to have wronged them; to receive apologies given personally by or on behalf of that NHS body; to hear directly what steps have been taken to prevent any recurrence so far as possible; and to choose whether or not to settle the compensatory element of their claim, given the advice of the legal team at their side. In some cases claimants agree to settle at a level heavily discounted from their asserted and pleaded claim or defence because, having heard both legal teams discuss 19 Chapter 3, pp 65–85.

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Party objectives in clinical claims their relative strengths and weaknesses together and in private, such a discount makes sense. This can even lead to withdrawal of a claim. The claimant C brought proceedings against DD Trust and two other public bodies under the Human Rights Act 1998 and the European Convention on Human Rights, Article 2 and for alleged negligence in failing to prevent the suicide of C’s child, X. All three firmly denied liability, while expressing enormous regret and sympathy for C. DD Trust invited C to assist them with changes to their provision for young adults with X’s condition. C agreed to participate in this work and decided to discontinue the claim for damages on the basis that each party bore their own costs. C’s solicitors and counsel had been working on a ‘no-win-no-fee’ basis, and no damages (and thus no win) had accrued. But there are many mediations where the defendant team attends with a certain view of the strength of their defence as to breach or causation but, having heard the way the claimant’s team puts their case, decide to make a substantial increase over the original value they had placed on the claim. The norm at clinical mediations is for both parties to move a long way from their starting positions, doubtless reflecting a usually unarticulated willingness to reconcile their respective assessments of risk and move towards a settlement that they decide, on reflection, suits them both, even if it has necessitated concession.

What healthcare professionals want when clinical claims are made Obviously and self-evidently, healthcare professionals do not want to have made any kind of mistake in the first place, and if any suggestion of error is made against them, they are going to want it to be unjustified and for it to go away as quickly and as painlessly as possible. All healthcare professionals undertake such work wishing to improve the health of those who place themselves in their care, and to be as excellent as possible in doing the job they do. An allegation that they have been less than competent goes to the root of their professional self-esteem. The impact of such allegations is well described in the Prichard review, conducted in Canada in the early 1990s looking at how doctors in highrisk specialisms viewed and responded to legal threats. In Errors, Medicine and the Law20, Merry and McCall Smith recount one doctor’s reported reactions to an accusation of negligence, as extracted by a commentator:

20 A  Merry and A  McCall Smith, Errors, Medicine and the Law (Cambridge University Press, 2001).

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What healthcare professionals want when clinical claims are made ‘First of all I  experienced “denial” … A  nasty part of the denial reaction was the way it scrambled up my memory of the events so that what I  believed had happened did not actually happen … Worse still, it blinded me to the fact that I  was blameless … The part which was very hard to take was that I felt very badly about myself and my fitness to act as a physician. I lost faith in my judgment’21. The same commentator then went on: ‘This anecdotal narration of a legal suit inducing feelings of denial, confusion of events, self-blame, anger, unworthiness, hesitancy, and insecurity is graphic, not simply in itself, but also because it is so closely identifiable with the grief reaction following bereavement. It appears that being sued may be like suffering a death in the family, the more stressful because the death may not be sensed to be of the defendant’s self-image, self-esteem and selfconfidence22’. And this was a physician who apparently had not erred. In her 2000 study of the impact on doctors of being called to account23, Professor Linda Mulcahy quotes an English consultant as follows: ‘When doctors receive complaints, they go through a series of emotions. First of all they are frightened, because it is the beginning of a process they don’t understand. Then they feel injured, because they feel they are only doing their best or the complainant does not understand what they have done. Where the complaint is unjustified they feel irritation. Finally, they get round to asking the most important question: is this complaint actually about the standard of clinical care?’ Perhaps the best extended description of the huge drain on the resources of a doctor who fears that what was done might be regarded as falling short of required standards, and give rise to compensation, is to be found in Henry Marsh’s moving book Do No Harm, a striking account of life as a neurosurgeon who has spent his career on the edge of causing catastrophic injury to his patients – usually non-negligently, on the basis of his patient’s informed consent to the risks, but sometimes negligently. He describes attending a consultation with leading counsel about whether to settle a claim in which he feels himself to be indefensible, having missed a serious infection, albeit unprecedented in his experience, which left his patient 21 Noted by B  Dickens in ‘The effect of legal liability on physicians’ services’ (1991) 41 University of Toronto Law Journal 168 and requoted in Merry and McCall Smith, Errors, Medicine and the Law at 216. 22 Ibid at Dickens, 181–182 and Merry and McCall Smith, 216. 23 ‘From fear to fraternity’, an unpublished PhD thesis reported by her in a chapter of the same name in L Mulcahy, Disputing Doctors: the Socio-legal Dynamics of Complaints about Medical Care (Open University Press, 2003) 106.

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Party objectives in clinical claims permanently paralysed. ‘It felt as though I was attending my own funeral’ he writes, describing feelings of ‘dread and shame’ as the barrister sought to console him. ‘It felt strange to be an object of pity myself’24. It is easy to see how defensive attitudes are readily taken up in the face of complaint, whether justified or not. In her book Disputing Doctors25, Professor Mulcahy logs some of the most extreme reactions of doctors in such circumstances, noting: ‘Positive or empathetic comments about complainants were made in just 6 out of 141 commentaries on why people complained. Complainers were most often described in negative or dismissive terms as moaners, nasty, abusers, and malcontents. Interestingly, 21 consultants, only 12 of whom were specialists in psychiatric medicine, described complainants as exhibiting symptoms of psychiatric illness such as personality disorder, paranoia and neuroticism’. This is a rather startling set of reactions. Mulcahy’s report on the NHS mediation pilot found little evidence that doctors welcomed the opportunity to talk to their patients within the mediation context, or even relished the idea of attending at all. More recent mediation experience seems to have found doctors more positive about contributing usefully at mediations, as later anecdotes in this book will suggest. To set some objective research against the reactions quoted above, Relis speaks positively about what happens when doctors and patients meet again in a forum such as a mediation. A number expressed approval of the opportunity to talk again to their patient, both to explain what happened and why and to hear what the patient’s perceptions were. She refers to the Massachusetts voluntary mediation scheme, in which doctors appreciated that it gave them the opportunity to apologise, express regret and provide assurances that occurrences would not recur. The writer’s own experience of the way doctors participate in mediations has, on the whole, been much more positive. Here is an example: C had undergone elective surgery to correct biliary reflux. After an apparently successful procedure C failed to thrive and the surgeon decided to re-enter the abdomen on more than one occasion to check for possible obstruction. In doing so, some non-negligently caused damage occurred to the gut, which required two attempts at repair through the same scar. While he was away, and without the surgeon being consulted, C was moved to another hospital and was discharged well after a month’s conservative treatment. Five years later, the surgeon and C met for the first time at a mediation late in the 24 H Marsh, Do No Harm: Stories of Life, Death and Brain Surgery (Weidenfeld & Nicholson, 2014) Ch 15. 25 See n 23.

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What healthcare professionals want when clinical claims are made life of a litigated claim, during which the surgeon took the opportunity offered to explain his decision-making to his former patient and C’s lawyer. In subsequent private meetings with each party, first C and his wife expressed real appreciation about the chance to meet and hear from the doctor and to understand why some of his decisions were difficult, and then the surgeon expressed deep satisfaction that he had been able to attend to the disrupted clinical relationship, having been prevented by the litigation process from bringing it to a proper conclusion with a full explanation of what had happened. A mutually acceptable settlement was quickly agreed. Occasionally, involvement in a mediation will move a doctor from deep reluctance to meet the family face-to-face, to acceptance of the value of contact for both of them and positive steps which move the claim towards resolution. Here is an instance of where a chance encounter at the mediation did just that: Two years after suffering a brain haemorrhage, C underwent further surgery to treat an aneurysm at DD Trust, performed by X, a neurosurgeon. C suffered irreversible ischaemic brain damage. C’s spouse acted as C’s litigation friend and alleged that C had not been properly advised, nor been given the opportunity to give informed consent. A mediation was convened before issue of proceedings. X attended but was very reluctant to meet C’s team or to discuss taking C’s consent, and had to leave for an afternoon surgical list. An early joint meeting was between lawyers only and the mediator. C and X met by chance in the mediation venue lounge, and this broke the ice between them. A joint meeting without lawyers between C’s family and the DD Trust team (including X) took 90 minutes, at which X undertook to secure ready access to further publicly funded care for C, which was gratefully appreciated and accepted. Both parties agreed that further information as to future needs was required before settlement could be considered, and a timed action plan was agreed for this, with C indicating that the claim would be less than a seven figure sum. Eric Galton, a Texas mediator with experience of over 600 medical malpractice mediations tells a story of what happened in one of these mediations26. In a neonatal death case, where the doctor had been on the golf course and unobtainable to cope with a crisis during birth, each party’s lawyer had told both the plaintiffs and the clinician not to speak at joint meetings during the mediation. They complied, and a substantial damages deal was negotiated, but each party then told the mediator that they wanted to meet the other. The doctor wanted closure and the family to hear from ‘my’ doctor. Galton describes what happened next: 26 E  Galton, ‘Mediation of medical negligence claims’ (2000) 28 Capital University Law Review 330.

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Party objectives in clinical claims ‘For several minutes, no words are exchanged. No one even moves. Suddenly the mother gets up and tears begin to flow, and she holds out her arms. The physician goes over to the mother. As they embrace, the physician says “I’m sorry. I’m so sorry”. The mother, patting the physician’s back, responds “It’s okay, we forgive you”. The husband comes over and joins the embrace. The lawyers, standing on the opposite end of the room, appear mystified. The physician, father and mother sit together and talk for ten minutes’. He goes on to comment: ‘No doubt the economic settlement was important and a legitimate goal of the mediation process. But, for the parties, the opportunity for conciliation and closure was at east equally important. In cases where the parties desire such closure, the process must provide such an opportunity. In the case described above, the parties, without such opportunity, would have received neither the full benefits of the process nor what they needed or wanted’27.

The no-fault compensation debate From time to time there has been an upsurge of interest, especially within the medical profession, over the possibility of replacing tortbased compensation by no-fault compensation for all medical accidents. It is said that much of the waste of time and money related to clinical claims derives from the need to prove fault on the part of the clinician or hospital under scrutiny. This leads to the kind of devastating impact on doctors described above. But, it is argued, such a system would benefit patients too. They would not have to undergo the tribulations of seeking legal advice, becoming involved in the obscure and potentially expensive technicalities of litigation with their uncertain and often (statistically) unfavourable outcomes. Doctors would not have to be found who were willing to criticise their fellow professionals in expert opinion. And claims handlers and lawyers would be out of work, leaving judges and doctors to spend their newly-freed time differently. Large sums of money currently spent on litigation costs would be saved at a stroke. This somewhat caricatures the position, and there is little point in spending much time on the issue here, as there is currently a lull in enthusiasm for such a proposal. There was fierce opposition to such an idea from a number of sources, not least from Action for Victims of Medical Accidents (AVMA), particularly driven by the view that blame was necessary for the disciplining of the medical profession when it got things wrong. The idea went so far as being incorporated in a Private Member’s Bill in Parliament in 1991. Arnold Simanowitz, the driving force behind AVMA as its first 27 At 325.

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The no-fault compensation debate Chief Executive, summarises the arguments deployed by them in his book The Man under the Clapham Omnibus28. He argued that: ‘The primary mischief to be addressed by any legislation to put victims of medical accidents in a better position than they are now is the lack of accountability of the health care professional for those accidents. What patients need above all when things go wrong is to know that they have gone wrong and not to be told that they have simply been the victim of a disease or the usual complications of an operation; they need to know why they went wrong; they need to have a full and meaningful apology; they need to know that other health carers will be told and understand what went wrong and, using that knowledge, will do everything they can to put things right; and they need to know what action will be taken whether with regard to individuals or systems, to ensure that similar accidents do not happen to other patients in the future. In addition, many of them will need compensation to maintain or rebuild their shattered lives’29. Not all doctors were enthusiastic about no-fault compensation. In an article in The Lancet30, Charles Vincent and others ended an extensive survey of patient attitudes by saying: ‘The process of litigation may provide patients with compensation and sometimes with an explanation but it does not really address their concerns about standards of care or accountability. Much more could be done after the original incident to meet the needs of patients and their relatives. Compensation might, where appropriate, be offered at a much earlier stage. A clear, full, and honest explanation is fundamental. Patients’ wishes to prevent future incidents and to know that changes have been made should be taken seriously. Where appropriate, patients could be informed of disciplinary action or re-training of staff. The degree of emotional distress resulting from the incidents will often be sufficient to warrant formal treatment, and staff will often also need support or counselling. The findings of this study suggest that a no-fault compensation system, however well intended, would not address all patients’ concerns. If litigation and injury to patients is discussed solely in terms of legal processes and financial management, the fundamental problems will neither be understood nor resolved’.

28 A Simanowitz, The Man under the Clapham Omnibus: the Search for Patient Safety and Justice (Pen Press, 2013). 29 At 106. 30 C  Vincent, A  Phillips and M  Young, ‘Why do people sue doctors?’ (1994) 343 The Lancet 1609.

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Party objectives in clinical claims The last serious debate of the topic was conducted when Sir Liam Donaldson was Chief Medical Officer, in the discussions which led to his report, Making Amends. After consulting widely, including looking at such schemes in New Zealand and Finland (both far smaller countries) Sir Liam formed the view that this was not the way forward and it has not surfaced since as an option. He proceeded with his NHS  Redress Bill, which did become law in 2006, but in England at least has never been implemented because, it is believed, of its feared huge cost implications, which is also probably the overarching reason for not proceeding with no-fault compensation. Since 1 January 1990, Crown indemnity has been in place by which the NHS covers liability for all staff working for the NHS, whether medical, nursing or administrative31. The change came about as a result of the mounting costs of professional indemnity insurance for doctors. The British Medical Association was opposed to this idea initially, as it seemed to infringe professional independence, preferring to support the idea of no-fault compensation. But eventually the scheme was introduced, and while it does not amount in any way to a no-fault compensation system (as a claimant must still establish fault on someone’s part), the task is much simplified when suing NHS hospitals. It is no longer necessary to identify the particular healthcare professional alleged to be responsible for a negligent act, nor even to distinguish between the liability of a given NHS  Trust for a defective system of care as opposed to its vicarious liability for the negligence of healthcare professionals working under their NHS employment contract for the Trust. It is sufficient just to name the relevant NHS Trust as the defendant. The situation is further simplified by the fact that since 1995, all defences of claims against NHS Trusts are now handled centrally by NHSR and its panel of lawyers. This also means unified handling by NHSR in cases where allegations are made against two or more NHS Trusts responsible successively for treating the same claimant. Of course clinicians still need indemnity cover for private medical care undertaken by them, as do GPs, who are independent contractors to the NHS and not technically employed by it. Crown indemnity obviates the need for multiple defendants being named in proceedings, unless there are overlapping allegations between NHS carers, GPs and private consultants, which will occasionally happen. But tort liability still remains the foundation of clinical negligence law, whatever opinions may exist about no-fault compensation. The only exception to that is the initiative taken by Department of Health in 2017 in publishing and consulting on a Rapid Resolution and Redress scheme aimed at both providing better understanding and prevention of serious birth injury and of providing financial support to families whose children 31 Health Circular HC(89) 34, Claims and medical negligence against NHS hospital and community doctors and dentists (1989).

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The no-fault compensation debate suffer brain damage, available without the need to go to court. However, families apparently will not be barred from making civil claims. The outcome of the consultation was published in November 2017, and a policy statement is promised in 201832. Perhaps the last word on this might properly belong to a medical practitioner. In Do No Harm, Henry Marsh writes: ‘Doctors need to be held accountable, since power corrupts. There must be complaints procedures and litigation, commissions of enquiry, punishment and compensation. At the same time if you do not hide or deny any mistakes when things go wrong, and if your patients and their families know that you are distressed by whatever happened, you might, if you are lucky, receive the precious gift of forgiveness’. This is a generous opinion. It is the more powerful because he expresses it after telling the story of a grieving mother who could not forgive hospital staff over the sudden but probably non-negligently caused death of her adult son, adding: ‘I fear that if she cannot find it in her heart to forgive the doctors who looked after her son in his final illness she will be haunted forever by his dying cry’33. Forgiveness is a two-way street. But maybe it is worth trying to seek it out and to look for a process through which it is just possible that it can be found.

32 Rapid Resolution and Redress Scheme for severe avoidable birth injury: Government summary consultation response: Dept of Health (28 November 2017). 33 Marsh, Do No Harm, Ch 15.

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Chapter 2

Settlement processes and trials of clinical claims Settlement is undoubtedly the primary means of disposal of clinical claims in England. In NHSR’s 2016–2017 Annual Report, the first one under its new style of NHS Resolution, they reported that of the 17,338 claims which they settled in that financial year, 37.7% were settled without damages paid before proceedings were commenced; another 6.1% were settled without payment after proceedings were commenced; 30.1% were settled with damages paid before issue, and another 25.4% settled with damages paid. That means that a massive 99.3% of that year’s caseload settled, with only 0.7% (or 121 cases out of the 17,338 claims made) going to trial. Of these, 49 cases resulted in damages awards and 72 were dismissed with no damages awarded. Previous years have also produced very low percentages for trials. Illustrating the challenge in getting clinical claims right from the claimant perspective, just over 44% of concluded claims were ‘lost’ overall, in the sense that no damages were paid, again consistent with previous yearly reports. It might, therefore, be asked why there is any need to review settlement at all in this sector, when almost all cases get settled. Cases get settled through correspondence, round table meetings (RTMs), acceptance of Part 36 offers or other means of negotiation. Mediations have hitherto represented a tiny proportion of those settled cases, significantly less than 100 of the 17,000 closed files during NHSR’s last published annual results. One factor, at least so far as NHSR and perhaps the courts are concerned, lies in the costs and time invested in achieving settlement. Claimant legal costs of making claims in the same year went up by 19% to just under £500 million, or 46% of damages paid out of just over £1.08 billion. Adding in defence legal costs of just under £126 million means that legal costs represent well over a third of the total spend on clinical claims. So the cost of settling all but a handful of claims before trial is still enormously high. It would be surprising indeed if any lawyers involved in this work were to accept that what they earn is excessive. But they can hardly complain if the NHS seeks to reduce this drain on the public health budget. As far as the courts are concerned, until settled, clinical claims require considerable case management time. Budgeting and case directions are complex and time-consuming, even when entirely proportionate to the difficulty and importance of the issues at stake. Yet do the courts have any proper role in influencing how early the parties might see whether compromise is available? Every case that is settled before issue as a result 27

Settlement processes and trials of clinical claims of information exchange between the parties generated by the operation of the Pre-action Protocol saves the considerable expense of issuing proceedings and the burden of case management. The need to draft and exchange statements of cases which, in effect, parallel and reproduce what is set out in pre-action letters of claim and response, is avoided. The ethos of the Civil Procedure Rules 1998 (CPR) is based firmly on court being the place of last resort, and on attempts to settle being properly encouraged and facilitated by judges at all times. Another underrated factor, discussed in Chapter 1, which impacts on the way cases are settled, is what claimants themselves and clinicians would personally like to extract out of the claiming process, either as a positive benefit (attention to the restoration of a fractured clinical relationship) or as making the best of what will have been a painful experience for both, albeit for different reasons. So the question is not so much whether cases settle, because they almost all do. The real questions needing proper attention are when they settle, and how. Can satisfactory and satisfying settlements be brought earlier in the life of claims? And are the processes currently used to discuss settlement the best available, both to satisfy the parties and to minimise costs? In view of the fact that 44% of all cases closed in 2017 were settled on the basis that no damages were payable, including over 1,000 (or about 20%) of those actually issued which settled without payment of damages, was there any avoidable waste of resources and cost that earlier contact between the parties might have saved? Are the right questions being considered during settlement discussions? If not, would earlier engagement in an appropriate settlement process allow for such questions to be discussed, thus allowing them to have some impact on both those discussions and their outcome? This book argues strongly that settlements are still not being discussed soon enough (ie the ‘when’ question), and that the settlement processes commonly used are inadequate to deal with what research has shown are significant concerns for both patients/claimants and healthcare professionals (ie the ‘how’ question). There is no published research on how cases settle; for instance, what proportion settle by correspondence, or acceptance of a Part 36 offer made by a defendant or indeed a claimant, or at an RTM (a process considered in detail later in this chapter). Nor is there yet any research on when cases settle once issued, other than the broad figures from NHSR which show that, as far as 2016–17 is concerned, two-thirds of cases closed by NHSR settled before issue of proceedings and the rest settled before trial, except for less than 1% cases, which were tried. The unifying feature of all those occasions, except RTMs, is that they are at arm’s length as far as claimant and defendant parties are concerned: the parties do not actually meet. Even at RTMs, as reported anecdotally, claimants may be present but hardly ever meet anyone from the defendant team. And the defendant team will rarely, if ever, include a clinician, even if there is a Trust representative present. The norm 28

Settlement processes and trials of clinical claims  for RTMs is for them to be run by the senior lawyers on each side, with no independent chair, and for the conduct of the RTM to be directed at legal and expert medical argument. Little attention is paid to the needs of the claimant, or to providing the claimant with a platform to articulate to the defendant team the impact of what is alleged to have gone wrong. Nor will the claimant have the opportunity to hear from the defendant team personally, perhaps by way of acknowledgement or apology, or an explanation as to what happened, and reassurance that lessons have been learned. Of course lawyers on both sides will be keen to make sure that the advice they give about what is an appropriate level of settlement is based on a firm foundation. Claimant lawyers will not want to risk being sued for negligently advising settlement at an undervalue. Defendant lawyers on the panel of NHSR or an MDO are not going to want to get a reputation for advising settlements at an excessive value. The assembly of expert opinions on each side, followed by correlation through drafting agendas and questions for Part 35 meetings and reports is a lengthy and laborious process, and arguably giving final advice about whether to settle or fight cannot be safely given until all is in place, perhaps a few months before trial. Yet lawyers involved in this highly technical field of litigation are holding themselves out as experts with a degree of experience in assessing strengths and weaknesses in cases (if they are not, then arguably they should not be doing such work). It is part of a clinical negligence lawyer’s daily job to evaluate expert opinion evidence so as to advise on its impact on the issues at stake, and the prospects of success. A salutary reminder that not having every piece of evidence in place does not justify a refusal to mediate comes from the Technology and Construction Court, which deals with another technically complex area of litigation where expert reports are of great importance. In PGF  v OFMS II 1, later affirmed by the Court of Appeal2, Stephen Furst QC sitting as a deputy High Court Judge (and one of the relatively few such judges then with direct practical experience of mediation) said: ‘Experience suggests that many disputes, even more complex disputes than the present, are resolved before all material necessary for a trial is available. Either parties know or are prepared to assume that certain facts will be established or, during the course of a mediation, such information is made available, often on a without prejudice basis. The rationale behind the Halsey decision is the saving of costs and this is achieved (or at least attempted) by the parties being prepared to compromise without necessarily having as complete a picture of the other parties’ case as would be available at trial. It might well be a legitimate reason for postponing a mediation if essential information was requested 1 [2012] EWHC 83 (TCC). 2 [2013] EWCA Civ 1288.

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Settlement processes and trials of clinical claims and refused and in such circumstances no adverse costs order might be made, but this was not the position here’3. The important decision in PGF is discussed more fully in Chapter 3, but its immediate relevance here is to remind lawyers in technical litigation that not having every piece of evidence in place, even from experts, does not necessarily excuse settlement attempts or, as in PGF, deflect the risk of a costs sanction for not mediating. In clinical claims there are relatively few cases where the focus is not primarily on the past – what went wrong historically and whether it amounted to breach. Occasionally there are cases where prognosis is uncertain, most notably in cerebral palsy claims. But future risks are often evaluated readily in advance as soon as prognosis is clear, and in a very substantial number of claims this should be possible before the end of the limitation period, or, to put it another way, once Preaction Protocol obligations have been satisfied before proceedings are issued. The other important issue is one of party control and choice. Litigated claims belong ultimately to the parties and not to their lawyers. Many claimants have plucked up considerable courage and determination to contemplate making a claim. Clinicians may have plucked up courage either to explain or justify their care. Perhaps even more courageously, they come to face the consequences of admitting to a mistake which may be actionable, confronting themselves with the fact that they were less than professionally perfect on this occasion. Yet by the very nature of clinical negligence litigation, lay claimants and defendants are inevitably distanced from their case by its inherent technicality. Both may feel frustrated about the length of time it takes. Claimants may not enjoy having to relive what is probably one of the worst experiences of their life, or having the indignity of being examined by a doctor nominated by the defence. Defendants may have to confront criticism from a senior colleague captured in expert evidence, coupled with a sense of having unintentionally let their patient down. Both may, in short, feel uncomfortable about being involved in the litigation process when they have very little control over the speed with which it develops, and where again both are having to place their trust in a legal professional. This is hard for a claimant who already feels let down by a medical professional. As to clinicians, it almost goes without saying that they will feel oppressed and distracted by lingering accusations of sub-standard care, which will persist as long as such allegations remain unresolved. Claims take years of strain and expense to resolve without being brought to the point where options to settle are raised so as to give the parties a choice as to whether to settle or continue. If ever there was a field in which outcomes should be pursued swiftly for the benefit of all lay parties involved, it is surely this one. This is especially so in view of research that suggests that a significant part of resolution in such cases is unrelated to monetary compensation. 3 At para 45.1.

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Different settlement processes in detail C claimed for psychological damage as a secondary victim over the death of her new-born child. A mediation was convened five years after the birth. Breach of duty had been admitted but causation of psychological harm was denied. Trial was due in two months’ time. During the mediation, there were two joint meetings chaired by the mediator involving the hospital consultant, the NHS Trust Claims Manager and the claimant, which was absolutely at the heart of the successful outcome. These lasted an aggregate of about 1 hour 20 minutes, during which C’s counsel asked questions based on areas of concern and allowed the consultant to respond freely and openly (a job he performed extremely well and sensitively, as C was still very suspicious and emotional). The consultant and Trust manager commented as they left that it was a pity that such a conversation had not taken place considerably sooner - within months or weeks of the events rather than five years later. The claim was settled for a six figure sum. This was yet another example of how participation in a safe process like mediation, perhaps especially because it was managed by someone neutral, can help to provide information and (dare one say it) healing for claimants, healthcare professionals and institutions even after an intolerably long time. Nothing was gained by the lapse of time between this disastrous birth and the mediation five years later – apart from the sheer passage of time in which changes in practice were made but not communicated to the claimant until the mediation – that could not have been done four years sooner. Nor did any cogent reason emerge as to why the claim took five years before a settlement occasion was convened.

Different settlement processes in detail This section looks in detail at the principal settlement processes used in clinical claims, in an attempt to analyse the often unspoken benefits and disadvantages of each, and to set each in its legal context, in terms both of its confidentiality and its use as a way of capturing learning for the future. Direct negotiation This is the oldest, most accessible and informal settlement process, ranging from direct contact between the claiming party and the defendant (and potentially the paying party) without lawyers through to lawyerto-lawyer contact (which in England and Wales may be at the level of solicitor-to-solicitor or counsel-to-counsel). Direct lay contact without lawyer involvement may occur at the complaints stage, though it will be difficult for a cash sum to be agreed in full and final settlement without some independent legal advice as to its appropriateness to a claimant, so as to avoid later accusations of an unconscionable bargain being foisted in a situation of power imbalance. 31

Settlement processes and trials of clinical claims Direct negotiations may be conducted in writing, with offers to settle set out in paper or e-mail correspondence, or in person at a meeting, almost always lawyer-to-lawyer. They may be conducted before or after the initiation of proceedings, right up to the court door on the day of the trial. Such discussions automatically attract ‘without prejudice’ status, whether or not that phrase is specifically mentioned orally or in writing before or during the negotiations. This means that no concessions made for the purposes of negotiation or offers made or exchanged during negotiations while exploring settlement can be adduced in evidence at trial if no settlement is reached. If, for instance, breach of duty is contested at trial following inconclusive settlement negotiations, the claimant will be prevented by the judge from giving evidence that during the mediation the defendant made concessions or offers, as a way of persuading the judge that breach of duty is made out. However, there is no implicit obligation to keep such negotiations confidential from publication to the world. Only the trial judge must be kept from what happened, at least until costs begin to be discussed after judgment on the merits. In practical terms this means that many settlements naming the parties and settlement terms are reported as case studies on comparative settlement levels in such clinical negligence literature as Kemp & Kemp: Personal Injury Law, Practice and Procedure, Butterworths Personal Injury Litigation Service and Clinical Risk. There are exceptions to ‘without prejudice’ privilege. It can be waived by agreement between the parties; evidence can be admitted to establish whether an agreement has indeed been reached if one party questions this; and it may be unilaterally lost if one party is found to have indulged in ‘unambiguous impropriety’ in forcing a settlement, such as duress or undue influence. Such exceptions may arise only rarely in clinical cases, but they exist and need to be taken into account. Apart from very early contacts between a patient and a hospital Trust or GP practice, direct negotiations at meetings are almost always conducted between lawyers, without the lay clients being present, unlike RTMs (see below). Acceptance of Part 36 offers These are a rather draconian form of settlement process, backed by strong sanctions if the recipient of a Part 36 offer misjudges failure to accept such an offer. It is considered here simply to compare it with other settlement processes, rather than offering an exhaustive explication of its technicalities, for which reference should be made to the CPR and practice textbooks. Part 36 procedure is the only settlement process formally devised by court rules. Before the CPR, this procedure was called ‘payment into court’. It was only available to defendants in issued litigation, enabling them to try to 32

Different settlement processes in detail end litigation in which they acknowledged they were at risk on liability by making a formal written offer to settle for a damages sum which they had to pay into court in support of that offer. (Using pre-CPR terminology) the plaintiff had 21 days to decide whether to accept or reject that offer. If accepted (by written notice), the action was settled at that amount, which was paid out to the plaintiff, with a right to have party-and-party costs taxed. If rejected, the case continued to trial unless otherwise settled, with the fact of the payment into court concealed from the trial judge until judgment on the merits had been given and damages had been assessed. When considering costs, the judge would be told the amount of any payment into court. If the judge’s award to the plaintiff exceeded the payment into court, costs followed the event as normal. But if the plaintiff was awarded no more than the payment into court, the normal order would be for the plaintiff to receive costs up to the date of acceptance, but to be liable for the defendant’s costs from then to the end of trial, if necessary suffering these out of the damages award. The principles of payment into court have been woven into a complex self-contained code under the CPR. The principal changes are set out in CPR Part 36 (hence the new name) and some of the effects wrought by the CPR are set out in CPR Parts 44–48, which deal with how costs are awarded. In outline, the main points are: •

no money is now paid into court by a defendant (interestingly, as a result of an initiative from the NHS Litigation Authority, which asserted that the NHS was always good for damages if ordered on judgment. But it had huge sums tied up in court funds by lodging payments into court which were rendered inaccessible for current funding of patient care and thus damaging NHS cash-flow);

• parties can make more than one effective Part 36 offer, and any such offer will remain effective after the 21 days allowed for acceptance, unless formally withdrawn; •

if a Part 36 offer left open for acceptance after 21 days is accepted late, there will normally be adverse costs consequences in relation to the period since the 21 days expired;

•

Part 36 offers can be of a percentage level of damages as well as a specific figure (usually considered when a split trial has been ordered which will consider breach of duty and causation first, but in clinical claims are probably only relevant to claimant Part 36 offers or in the very rare clinical cases when contributory negligence is alleged);

• claimants also may now make formal Part 36 offers to settle, with costs consequences if defendants misjudge their refusal to accept the terms proposed by claimants; • if a claimant’s Part 36 offer to settle is rejected by a defendant who at trial is ordered to pay damages greater than the 33

Settlement processes and trials of clinical claims settlement figure proposed formally by the claimant under Part 36, then the court may award up to 10% interest on both the damages award and costs, with a ceiling of £50,000 extra on claims up to £500,000, and for any sums over £500,000, up to a maximum of £75,000, and with the claimant’s costs assessed on the indemnity basis4; • even if a claimant beats a Part 36 offer, the court retains an inherent discretion under CPR  Part 44.3 to vary the normal consequences for a defendant who persuades the judge to penalise a claimant who has exaggerated the claim or otherwise conducted litigation unreasonably; • (assuming no deceit or other misconduct) failure by a claimant to beat a Part 36 offer provides the main exception to the ‘qualified one-way costs shifting’ (QOCS) rule which normally protects claimants from liability for a defendant’s costs in the event of losing a case altogether or failing to beat a Part 36 offer, so that a misjudgment on refusing a Part 36 offer can swiftly lead to swallowing up much, and even – in extreme cases – all, of the damages awarded to pay the defendant’s costs5. There will be differences in approach between claimants and defendants in deciding whether, and if so at what level, to make a Part 36 offer. For a claimant, the intention will be to attract a defendant into settlement by offering a slightly discounted figure from a theoretically justifiable case value. In the approach to a trial on liability only, a claimant might formally offer to accept a risk-discounted percentage (say 80%) to buy up the risk of losing altogether. For a Part 36 offer of a specific sum to attract a defendant, the terms offered will need to be seen as an attractive discount to a figure which a defendant might well fear being ordered to pay at trial. However, a defendant will approach setting the level of a Part 36 offer from the perspective of doing better than the sum the judge is going to award. There is no point in calculating such an offer on the basis of a generalised risk discount in clinical cases, because in terms of findings on breach of duty and even sometimes causation, clinical claims are effectively all-ornothing decisions for the judge. As noted above, contributory negligence is rarely an issue that might slice a percentage off a total award. It is only when breach of duty is made out or conceded that the sum to be awarded will be subject to arguments about what damage the breach actually caused. The defendant will then need to try to guess which arguments the judge will accept and reject, both on causation generally and on individual heads of damage, and then try to propose a Part 36 figure which will be less than what the judge will actually award, rather than applying a generalised discount for risk.

4 See Chapter 9 for a fuller account of indemnity costs. 5 Again, see Chapter 9 for a fuller account of QOCS.

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Different settlement processes in detail Part 36 perhaps operates as a pre-trial incentive to take an opponent’s offer that is near to being acceptable, as well as being a frequent feature of costs judgments at trials. As we have seen, trials are rare in any event, and many of them will have been argued on the basis that breach of duty and/ or causation are at issue, and that according to the defendant no damages are payable (hence no Part 36 offer will have been made). In clinical claims, Part 36 offers are deployed when battle is joined over causation and quantum issues. But anecdotally at least, Part 36 offers are still only cautiously used by claimants, and there are no published figures as to how many cases settle by accepting them. Viewed objectively through the eyes of lay participants, however, settlement through Part 36 can hardly be regarded as satisfying from a human perspective. The clinicians involved are nowhere near the procedure and will simply be told that the claim has been settled at some time, if someone remembers to do so. Even more significantly, discussions over Part 36 are bound to seem somewhat threatening to lay claimants because of the adverse consequences that can arise for them, and over which they have virtually no control. Nor does Part 36 afford them any opportunity to seek other benefits from finalising their claim or to deal with associated issues such as future care by the NHS. This is an arm’s length settlement process, embodying a degree of procedurally authorised threat, in which a claimant has to rely entirely on the judgement of a lawyer over whether to accept or reject what is proposed. Discussions with the claimant will be only with the claimant legal team (by telephone or correspondence or, if in person, at the solicitor’s office or in conference with counsel). Defendants do not explain their offer to the claimant in person, nor do they actually have to break it down and explain its reasoning or its component parts to the claimant’s advisers. For this reason it risks appearing draconian to claimants at least. If they feel obliged to accept it on the advice of their lawyers, it is unlikely to give much sense of a satisfactory outcome to what they felt was a genuine grievance. Round table meetings RTMs are a relatively recent format for settlement discussions, which increased in popularity in the early years after the introduction of the CPR. Some have called them ‘mediations without a mediator’, and it is probably because of the stimulus given to mediation by the CPR and decisions such as Dunnett v Railtrack plc6 in 2002 that other options have been generated. On the face of it, these options are to save the cost of the mediator, but maybe also minimise perceived or feared loss of control by the lawyers engaged in such work. RTMs are currently much more frequently used than mediation as a settlement process in personal injury and clinical negligence claims. They have arguably developed, and been defended as

6 [2002] EWCA Civ 303.

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Settlement processes and trials of clinical claims a kind of norm, at the expense of promoting the use of mediation in those two extensive sectors. In essence, RTMs take the form of a bilateral meeting for several hours between the legal teams for each party, without a chairperson, and led by the senior lawyer for each party. They call for a degree of preparation akin to the level required for a mediation, or indeed a trial, as they are certainly intended to offer an occasion for considering global settlement of a claim. Until RTMs were devised, it was rare for each legal team to convene like this until the door of the court. Since court-door settlements have effectively become anathema since the CPR, RTMs offer an alternative which is usually convened between six and three months before the trial window opens (ie  relatively late in the litigation process). By that time, lay and expert evidence has been disclosed and considered, and very often expert meetings (required under CPR Part 35 to narrow differences in expert opinion) have produced a joint report for the judge. There is no doubt that, despite the fact that such bilateral discussions encourage positional bargaining, including bluff and posturing as to strengths and weaknesses of each side’s case, and the possibility of a walk-out to make a point, they do very often lead to settlement. However, they differ from mediations in a number of significant respects, both in terms of legal concept and in practice. In terms of legal status, they attract exactly the same ‘without prejudice’ privilege, and no more, as direct negotiations, of which they are essentially just a refined form. So no concessions or offers made within a RTM can be reported to a judge. But there is no implication as to the general confidentiality of RTMs. Settlements agreed at RTMs can be reported in relevant publications, often without reference to the wishes of the parties. This enlarges knowledge for lawyers about levels of settlements, but is not directed towards identifying and implementing change in clinical practice for the benefit of the patient community at large. As to practical differences between RTMs and mediations, these relate to the role of the lay parties. While the design of any settlement process is a matter of free choice for those running and participating in it, the normal pattern for RTMs is reportedly of a lawyer-led, perhaps even a lawyer-dominated, process. On the claimant side, the claimant is usually not involved in the discussions between lawyers. The claimant legal team will discuss strategy with the claimant before negotiations start, and report back from time to time to seek comment and instructions, eventually on any bids that are made or received, leading ultimately to agreement, or deadlock and return to litigation. It is very unusual for the claimant to meet the defendant negotiating team at any stage. As for the defence team, this normally only consists of decision-makers – perhaps the NHSR, MDO or insurer claims handler and the claims manager from the NHS body involved. It is again very rare for a clinician from the NHS body involved to be in attendance, as the process is not designed around any discussions or exchanges about non-monetary matters, but simply 36

Different settlement processes in detail intended to deal with, and if possible settle, the issues that the court will be asked to decide. Further, the process has to be run by the partisan lawyers for each team, with no neutral chair to relieve them of decisions about process and timing so that they can concentrate on the merits of their respective cases. There is no one there to add value or efficiency to either the way the process is conducted or to the actual negotiations in the way that mediators can. Mediation Mediation has been defined as: ‘a flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution’7. Mediation’s essential and unique characteristics, as contrasted with RTMs, are that: • at the beginning of every mediation, a formal agreement in writing is signed by or on behalf of each party and by the mediator. This creates a number of important security features for the mediation process, namely: –

specific confirmation of its automatic ‘without prejudice’ status;

–

a contractual obligation on parties, lawyers and mediator to treat what is said at the mediation as confidential from the world at large (and not just a trial judge);

–

creating a formal requirement that nothing offered or provisionally agreed during the mediation will bind any party unless it is recorded in writing and signed by or on behalf of each party;

–

an undertaking by the mediator to abide by an identified Code of Conduct as to impartiality, conflict of interest and competence;

–

an assurance that each party comes in good faith to seek a settlement, while confirming the absolute right of each party not to settle and to initiate or return to litigation with no risk of adverse comment for declining to settle, and with no hindrance to each party’s right to opt for a public trial in accordance with Article 6 of the European Convention on Human Rights;

7 By CEDR: see its Model Mediation Procedure, republished annually.

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Settlement processes and trials of clinical claims • the process is managed by a neutral mediator, in consultation with each party and their advisers in both private and joint meetings, who will shape it to whatever suits the needs of each dispute and the parties present at the mediation; • lay parties take as full and central a part in discussions and exchanges as they wish: they can have an effective ‘day in court’, in the form of an opportunity to say what they feel and think about what has happened, in an evidentially secure environment, usually chaired and controlled by the mediator. This enables each party to say what they feel needs to be said and to inform and persuade the other party about aspects of the legal and expert issues relevant to choosing settlement or not. Patient and doctor can thus face each other again in person across a table, if they so choose (the mediator might well encourage them to do so, though without compelling such a meeting), and deal direct with what did and did not go wrong, and seek to adjust their fractured clinical relationship despite being kept apart by the complaints and claims processes, often for many years; • the mediator, not being a decision-maker who adjudicates on the issues, and who would thus be subject to the rules of natural justice (especially as to ensuring that everyone hears everything relevant that is said by everyone else to the adjudicator), adds value to the settlement process by being able to have successive private discussions with each party in their separate rooms where this seems useful. These enable the mediator to guide the parties into productive areas and methods of discussion and away from unproductive ones, to coach and focus negotiations, to help parties through apparent deadlock towards settlement without in any way suggesting, let alone imposing, a solution. In particular the mediator can help to maximise the benefit and minimise the embarrassment, pain and risks of the encounter between patient and healthcare professionals which usually occurs during the mediation. Powerful emotions underpin such meetings for participants on both sides. Helping each party to allow for this, and channelling those emotions productively and positively, requires insight, experience, skill and a firm commitment to neutrality on the part of the mediator; • the mediator can serve as an independent sounding-board for each party as to the level of risk in asserting or defending their case, simulating but (not being a decision-maker) not adopting the role of the trial judge: by testing out each party’s case in private and subject always to confidentiality of those private meetings, the mediator may raise – without any power to compel a reply – those questions that a judge is likely to ask in open court, but on that occasion with the power to compel a reply in front of the opposing party; 38

Different settlement processes in detail • in the event of apparent deadlock, the mediator is uniquely placed to receive confidential indications from each party as to any willingness to move further which they feel disinclined to reveal to their opponent. This enables the mediator privately to appreciate the true gap between the parties, and thus to propose possible ways to close that gap in ways that do not compromise confidentiality while still keeping the possibility of settlement alive. It follows that mediations are not only about settling the legal and expert issues at the heart of the litigation process as contemplated or already conducted. They offer the parties a safe and controlled environment for them to deal with the non-compensatory aspects that research has shown underpins what patients and clinicians both want to deal with when clinical care is perceived to have fallen short of its required standard. These matters can be dealt with entirely separately from technical questions of whether a breach of duty is made out, or what damage has been caused by the events in question. On any view, claimants will have suffered pain and loss, even if not negligently caused, and time and again mediators of clinical claims have heard them express appreciation about hearing a suitable acknowledgment of this fact from an authorised representative of an NHS body or the clinician in question, even when no immediate concession is made over breach of duty or causation. To hear that what happened to this claimant or family member was not entirely in vain, in that lessons have really been learned and practices have changed as a result, is surprisingly comforting to both claimants in hearing of them and clinicians in explaining them, very frequently opening a path to both of them to move on from the past. So the dynamic and the scope of what can be covered in a mediation is far wider than any other settlement process described above. A detailed account of how to prepare for and participate in a clinical mediation is set out in Chapters 6 and 7 below. A hybrid: independently-chaired RTMs (or is it really a mediation?) The difference between a settlement process run by an independent neutral and one which is not has now, it is hoped, emerged clearly, underlining the distinction between process and content. In an unmanaged settlement process, which may appear to work reasonably well, each party is negotiating in a partisan way, usually keeping their cards close to their chest and using the techniques of positional bargaining to drive their partisan agenda. There remains an underlying temptation to descend into bluff, threat, walkout, and there is rarely any inter-party conversation about a party’s own weakness. Proposals can only be articulated by a partisan voice. Meanwhile there is no real agreed structure to the process, implicit or explicit. This is why occasional use has been made of a neutral chair to manage negotiations between lawyers, when for whatever reason lay parties are 39

Settlement processes and trials of clinical claims not present. The neutral chair (effectively a mediator) sets up an agreed structure for the process by having discussions with each legal team privately. These can be briefer than those which initiate a mediation, and the parties will soon be able to meet across the table and exchange views, but this time with a chair who can keep discussions on track and offer or suggest opportunities for a break and reflection on what has been disclosed. The neutral chair takes on a much more significant role when it comes to bidding. The option then exists (if so desired) for bids to be conveyed room to room by the neutral, rather than across the table. This may clothe each bid with an air of objectivity which is less likely to be attached to a bid proposed by a partisan voice. What is much more useful is the neutral’s ability to manage apparent deadlock. The neutral has been confidentially privy to discussions in each room and knows more of each party’s true thoughts, fears and intentions than either would ever be likely to disclose in a face-to-face meeting. The neutral will not disclose any of this positively in breach of their confidentiality obligations, but will know what is unlikely to work and can guide each party towards making proposals more likely to generate progress. A  much more efficient negotiation becomes possible. And if there is a stubborn gap between the parties, perhaps because neither party wants to be seen to move further, the neutral has techniques that may enable the gap to be closed. This is simply not available if there is no neutral with the information and opportunity, not to mention experience, skill and judgement, to assess privately what might yet work and offer this to the parties. In truth, whether this is properly an RTM or a mediation is a matter of semantics. In the following example it was described as a mediation. In a serious birth injury a mediation was convened six weeks before trial. A high percentage of the claim’s full value had been agreed, to reflect a small degree of litigation risk on liability, and judgment had been entered accordingly. The dispute centred on future care and loss of earnings, based on the −0.75% discount rate. The mediation was not attended by either the litigation friend or by representatives of DD Trust or NHSR, for various reasons, so that each team consisted of counsel and solicitor. Each party had made a Part 36 offer before the mediation, still leaving a substantial gap. Brief private meetings at the start set the agreed shape of the day and the teams were quickly able to meet and exchange views. Bidding then proceeded by the mediator conveying several bids from each party, room to room, as one counsel wished to opt for that process and the other accepted. A stubborn but smaller gap was difficult to close, so the mediator proposed a possible figure, asking for confidential responses from each room. This did not lead to immediate agreement, but each team disclosed a willingness to consider one more move, and the case settled (subject to court approval).

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Court trials of clinical claims However, if it eases some unspoken antipathy to the term ‘mediation’ to call such an event a ‘neutrally chaired RTM’, so be it.

Court trials of clinical claims For completeness, the nature and impact of the court trial of a clinical claim on claimants and healthcare professionals calls for consideration. Trial is the rarely attained end product of the process set out in the CPR. It was said of the previous rules, the Rules of the Supreme Court, that they were designed as a road map to trial rather than to settlement. Although settlement is mentioned rather more in commentaries on the CPR, with introductory remarks underlining that trial is to be regarded as the last resort, even the CPR and the way they have been applied still largely regulate the journey to the courtroom, with little practical requirement placed on parties to try to shorten that journey by consensual discussion. Part 36 is the only formal settlement process enshrined in the CPR, and such a tiny proportion of clinical cases reach trial that the fear of a retrospective costs sanction for not engaging in settlement attempts is unlikely to be decisive. Many procedural judges in the Senior and County courts have maintained a laissez-faire approach to settlement, as Sir Michael Briggs (now Lord Briggs) noted in his recent major reviews of civil procedure and the courts. In his Chancery Modernisation report, he said that the courts tend to treat ADR as: ‘an essentially separate part of the dispute resolution process and, save for the occasional word of encouragement, the making of space in a timetable by a stay, and the very occasional imposition of costs sanctions for unreasonable refusal, to let the parties get on with it, or not, as they choose’8. In his Final Report on Civil Court Structure he commented: ‘further research and consultation has suggested that the extent to which mediation has reached a satisfactory steady state, as an alternative to determination of disputes in court is, at best, patchy in the civil courts of England and Wales. The current perception of the Civil Mediation Council appears to be that it is broadly satisfactory for high value claims and, (subject to the difficulties already described) for small claims, but that there is a substantial proportion of claims of moderate value where mediation is insufficiently used. Furthermore there appears to be a particular shortfall in the potential penetration of mediation in relation to personal injuries and clinical negligence claims. Feedback from the International Mediation Institute (to a board meeting of which I  was kindly invited in London in May 2016) suggests that this 8 M  Briggs, Chancery Modernisation Review Final Report (Judiciary: December 2013) Ch 5.9.

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Settlement processes and trials of clinical claims particular shortfall is not a consequence of the underlying nature of those types of dispute, because personal injury and clinical negligence claims are widely and successfully mediated in other countries’9. So trial is rare, because settlement is the norm. Is trial an ultimately satisfying process to lay parties in whose name it is convened? Is the much vaunted value of the ‘day in court’ worth striving for? It is hard to see how it can be at a ‘mere’ human level, though of course the adversarial forensic trial is undoubtedly a traditionally legitimate process for analysing evidence and reaching a determination on law and fact. There must be many claimants and families and healthcare professionals who dread the idea of giving evidence in a public court, or even of just having their case discussed in public. In a traditional courtroom, the lay parties will sit at the back on separate sides of the courtroom, behind their advocates, who face away from them to address the judge. The claimant may not even be called as a witness, but even if they are it will usually only be to buttress their quantum claim. The way they feel about what they perceive to have been sub-standard treatment is scarcely relevant. In truth, trials are conducted on the assumption that the parties want a judgment made for them which they cannot make for themselves. Healthcare professionals under scrutiny will fear cross-examination designed to evince that they were negligent just as much as, if not more than, welcoming the opportunity to clear their reputation. Trials are not focused on giving a degree of satisfaction to the litigants through the way they are invited to participate in the trial process: they are about each adversary laying sufficient fully-detailed material before the judge and each other so that a reasoned decision can be made, on the assumption that the decision is all that the parties want. This contrasts sharply with the kind of ‘day in court’ that a mediation affords to claimants and healthcare professionals, in a process and environment carefully managed by a skilled third party neutral. The focus can then be directed firstly on them as parties to a dispute, often by getting them to have a conversation sitting opposite each other at an ordinary table, rather than in separate pews or across a courtroom from a witness box, with all of this providing a context for settlement discussions in which the parties are free to choose their own outcomes rather than submitting to the opinion of a third party, however reasoned or authoritative. If there is a philosophical underpinning for the difference between settlement and trial, it is the choice that each offers between selfdetermination (even if not achieving every desired goal) and submitting a significant part of your future to the decision of a neutral third party assigned by others to make that decision. It is an important choice.

9 M Briggs, Civil Courts Structure Review Final Report (Judiciary: July 2016) Ch 2.24.

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Chapter 3

The legal and procedural framework for clinical mediations in England and Wales The legal and procedural framework in England and Wales

As we have seen in Chapter 2, settlement is by far the most frequently used method for concluding clinical claims, once formally initiated by Letter of Claim. Furthermore, many claims are settled before the issue of proceedings. If it is right that mediation is a useful settlement process, it is important that its legal status is well understood, both in itself and also in comparison and contrast to other settlement processes, so that intelligent choices can be made between them. Chapter 2 has already examined the practical differences between various settlement processes. Chapter 4 looks at the outline of the law as it applies to the making and defending of clinical negligence claims. This chapter looks in detail at the legal and procedural framework relating to the mediation process itself and how it fits into the civil justice system in England and Wales.

The general status of mediation and the agreement to mediate Unlike a number of jurisdictions in the US, mediation is not a creature of statute in England and Wales, but is a synthesis based on several principles of private law. In a number of US States, presumptions as to the basis on which mediations are conducted are written into State law, for instance as to confidentiality of the process and mediator compellability as a witness in later litigation. US academics and practitioners there have compiled a Uniform Mediation Act, which deals with such matters. The UMA serves as a model statute for States to adopt if they so wish, and a number have done so. Nothing comparable exists in England and Wales. Each mediation is preceded and governed by the effect of a formal written mediation agreement, which gathers together concepts from the law of contract, evidence and breach of confidence to create a very specific environment suited to the way mediations are best conducted. While the formal agreement to mediate might be open to technical attack on the basis that it is essentially an agreement to negotiate, which is not normally enforceable in English law, no English judge has hitherto shown any appetite to undermine the terms and effect of mediation agreements when they have come to be considered by the courts. 43

The legal and procedural framework in England and Wales Specimens of CEDR’s standard form Mediation Agreement and Model Mediation Procedure as used in clinical claims are to be found in Appendices A and B. The scope and effect of the most important terms in such agreements is now discussed.

Evidential privilege and confidentiality As discussed already, it is trite English law that any communications between parties to a dispute made to explore consensual settlement are automatically privileged from being given in evidence at a later trial of the same or related issues. They are treated as being ‘without prejudice’ to each party’s open assertions as to claim or defence. No concession made for the purpose of exploring settlement, and no actual proposal for settlement can be reported to a trial judge. This privilege extends to correspondence, whether marked ‘without prejudice’ or not, telephone calls, whether prefaced as being ‘without prejudice’ or not, and meetings, including round table meetings (RTMs). This automatic protection for RTMs is broadly felt to be sufficient, and it means that, unlike mediations, no formal agreement is signed by the parties prior to a RTM. It is, however, the only certain protection for such communications, and, like almost every broad principle of law, ‘without prejudice’ privilege (or settlement privilege, as it is sometimes called in other jurisdictions) is subject to exceptions, and therefore does not completely prevent judges from enquiring into what happened during the settlement discussions. The main exceptions are: (1) where there is in fact no real dispute to settle; (2) where one party engages in ‘unambiguous impropriety’, such as economic duress, blackmail or misrepresentation of a material fact; (3) where there is a dispute as to whether agreement has in fact been reached. In each of those cases, one party can unilaterally invite the court to admit otherwise privileged material against the wishes of the other party. The judge will decide whether that privilege applies to keep the material from the trial, or whether one of the exceptions applies. The privilege belongs to the parties and they are free to agree to waive it. There are some startling instances in commercial cases of mutually agreed waiver of without privileged discussions, where one party found that the judge took a much less positive view of the reasonableness of their offers than expected1. Whether to waive privilege is a decision that needs to be weighed very carefully. The mediator has no right to enforce adherence to ‘without prejudice’ privilege2. 1 Eg Malmesbury v Strutt & Parker [2008]  EWHC  424 (QB) and Chantry Vellacott v Convergence Group [2007] EWHC 1774 (Ch). 2 See Farm Assist v DEFRA (No 2) [2009] EWHC 1102 (TCC).

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Evidential privilege and confidentiality There is almost certainly no automatic right to assert rights to confidentiality (by obtaining an injunction or damages for breach of confidence) over the content of settlement discussions, whether or not they lead to settlement. This means that even if a trial judge may not be told what was discussed during the mediation, anyone else can be told. Those who first designed the mediation process unsurprisingly felt that this was not acceptable if a safe environment for discussing the possibility of settlement was to be created. Hence properly drawn mediation agreements always include a mutually binding contractual obligation to treat what happens at the mediation confidentially. This is signed by each party and also by the mediator and any mediation service provider. Additionally, mediators contract to treat in confidence anything they are told in private meetings with each party, only communicating what they hear in private to another party with the express permission of the party saying it. It is, of course, vital that the mediator works in an entirely neutral and independent way with all parties, and it is usual for the mediation agreement to provide that the mediator contracts to observe an identified code of conduct (usually the CEDR or EU  Codes, set out in Appendices C  and D), which provides for the mediator to declare any conflict of interest and to work neutrally and competently with all parties. Conversely, mediation agreements also normally provide that no party will seek to call the mediator as a witness in subsequent proceedings about either the dispute or what happened at the mediation. This sounds perverse, as there can perhaps be little doubt that a mediator would be an honest and authoritative witness in such circumstances, upon whom the judge would be able to place considerable reliance if there were disputed facts to reconcile. But mediators declare a positive duty of neutrality to all parties, and also contract to keep confidential what they are told in private. The possibility that a judge could compel a mediator to disclose to the court what the mediator was told in private would seriously undermine the whole security of the mediation process. One or two first instance judges have shown some willingness to require a mediator to give evidence, but on the whole courts have shown no enthusiasm to press for access to such information, either from parties or from a mediator. Because of the small risk of over-enthusiastic judicial intervention, mediation agreements usually provide that the mediator will be paid for time spent in resisting or (if unsuccessful) submitting to an appearance in the witness box. What mediation agreements do not do is to confer any power or authority on the mediator in terms of carrying out the job of mediation. Mediators have no power to make directions and have no authority except that which the parties agree to confer on them. While the mediator operates as a process manager, making suggestions as to what might be done next or later during the process, the order of events, whether a proposal should or should not be made now or at a suggested level or in a particular way, it is always subject to the consent 45

The legal and procedural framework in England and Wales of all the parties, and the mediator has no power to compel. Mediation is above all a process which confers autonomy on the parties in a way that they and their legal teams usually welcome, and this applies as much to the way the process is run as to whether to accept proffered settlement terms or not, or whether even to make an offer at all or to walk away without doing so. Mediators certainly have no power whatsoever to compel parties to settle. While it may superficially be regarded as a proper measure of a mediator’s ability to possess a high settlement rate, the paradox is that whether a case settles depends upon the parties’ agreeing to do so, even if the mediator bends every effort to creating the possibility of settlement. Indeed a mediator who drives a settlement may actually inhibit parties from achieving it. Once again, self-determination is at the heart of what mediation offers. This is perhaps particularly important in clinical claims, where so much more is within reach in terms of what the process provides for parties and the outcomes that can emerge. Equally, parties do not contract to settle, merely to attempt to do so. The CEDR standard form mediation agreement provides that ‘the Parties agree to attempt in good faith to settle the dispute at the Mediation’. This is a largely unenforceable undertaking, and there is no English court decision in which a party’s alleged failure to come to a mediation ‘to attempt in good faith to settle’ has been sanctioned. Attempts have been made to do so in the US. But if it is right that a party can leave a mediation without explanation and, because the mediation is privileged, without any later judicial sanction if that party felt that they were getting nowhere, it is hard to see how breach for lack of good faith could be proved or any loss substantiated, except possibly costs of the mediation thrown away. Experience to date, especially in the clinical sector, suggests that parties do come in good faith to engage in exploring possible settlement. They often derive benefits from that engagement in itself, even if no final settlement emerges. Not every case settles, of course, but very few end abruptly with a walk-out, as participation in the process itself generates a degree of mutual respect and concern which it would be most unwise to damage by sudden rejection of continued debate. The mediator plays a very important role in facilitating discussion in the right spirit without keeping difficulties and obstacles realistically in view for all parties. The mediator also works with deadlock and will try to discourage people from leaving prematurely. At a mediation attended by the family concerning the care of C, their terminally-ill adult child, the DD Trust’s decision-maker felt so insulted by what had been said about him and his organisation by the claimant family’s solicitor during the opening meeting that he spent much of the afternoon with his coat on and briefcase packed. The mediator persuaded him to stay and settlement terms emerged, to which he gave approval.

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A conflict between confidentiality and publicity?

A conflict between confidentiality and publicity? Some cases enter mediation after a high-profile inquest, public enquiry or even criminal proceedings, since it is usually any civil claim that is the last matter to be concluded, depending as it often does on the outcomes of such previous processes. If mediation is regarded as placing a gag on those who enter it to seek settlement of their claim, it will seem unattractive indeed, and a public trial might be thought to be a better forum. Furthermore, one of the most important concerns for claimants is to ensure that lessons are learned and acknowledged publicly where matters have gone badly wrong. So long as such special high-profile cases already in the public domain are identified in advance and the implications carefully considered both in advance and during the mediation, the confidentiality provisions in the mediation agreement should present no problem, and indeed a number of high-profile disputes have been settled at mediations. The starting point is to recognise that mediation is not there to render secret what is already in the public domain. But nor should the fact that a dispute is in the public domain be used to subvert the confidentiality of mediation discussions held before and on the mediation day. The necessary constant is that the confidentiality of the discussions convened under the auspices of the mediation agreement, from the time that confidentiality is agreed to begin until the end of the mediation, whether settlement terms are agreed or not, must be treated at all times as sacrosanct and kept from public view. It is the fact that such conversations are private that makes them potentially effective at all. The subject of agreed consequent publicity about the outcome of a mediation is certainly a proper topic for discussion during the mediation. Matters such as press releases and postings on an identified website are debated and frequently agreed, particularly in cases of public interest. The important practical consideration in advance is the wording of the confidentiality clause in the agreement to mediate. Compare and contrast the three versions of a confidentiality clause, all of which have been used in clinical negligence mediations over recent years, particularly noting the passages in bold type: A

Every person involved in the Mediation will keep confidential all information arising out of or in connection with the Mediation, including the fact and terms of any settlement, but not including the fact that the Mediation is to take place or has taken place or where disclosure is required by law to implement or to enforce terms of settlement or to notify their member organisation or the Department of Health.

B

Every person involved in the Mediation will keep confidential all information arising out of or in connection with the Mediation, 47

The legal and procedural framework in England and Wales including the terms of any settlement, unless otherwise agreed by the Parties in writing but not including the fact that the Mediation is to take place or has taken place or where disclosure is required by law, or to implement or to enforce terms of settlement or to notify their insurers, insurance brokers and/or accountants. C Every person involved in the Mediation will keep confidential all information arising by way of preparation for and during the Mediation, including any information exchanged or statements made during the mediation (unless disclosable in any event during any litigation) and any offers made which are not accepted, but not including the fact that the Mediation is to take place or has taken place, nor the fact and terms of any settlement (unless otherwise specifically agreed during the mediation) nor where disclosure is required by law, nor where required to implement or to enforce the terms of any settlement. The crux of the issue is whether both or either the fact and terms of settlement are to be kept private or made public in some way if the case settles at mediation. There may be reasons to select any of these options. A claimant who is concerned about publicising the fact that they have ‘come into money’ as a result of settling their claim may want version A or B. If they would like to be able to tell anyone that they had a claim which has been settled, they will prefer version B. If they do not want anyone to know that a claim was made at all, then they will prefer version A. If, however, they actively would like the result to be freely known and available, they may prefer version C. But whichever they choose, the route taken to reach that settlement by the discussions within the confidentiality of the mediation must remain confidential. This is particularly true if the mediation does not lead to settlement. Unless some partial agreement is reached (and written down and signed, in accordance with the requirement of the agreement to mediate for any outcome to be binding), perhaps by an agreed public announcement of an impasse after attempting at mediating a settlement, the only publishable matter is that a mediation has taken place. Defendants may be concerned over signing up to version C, on the grounds that it commits them to publication of the outcome in any event if it settles, both as to the fact and terms of settlement. But of course the terms of such publication themselves have to be agreed within the mediation anyway, and then reduced to writing and signed for them to be binding. If the terms of publication cannot be agreed, then there will be no overall deal, and what happened during the mediation leading to deadlock remains confidential on general principles. A  claim was made in negligence and under ECHR, Article  2 (the right to family life) by CC, the parents and siblings of a 14-year-old who died through self-harm while an in-patient at DD Trust. There had been a very traumatic inquest six months before the mediation, 48

A conflict between confidentiality and publicity? which itself was convened soon after proceedings had been issued. CC were very keen to have a meeting at the mediation with senior clinicians from DD Trust, to hear what lessons had been learned, in the hope that everything to prevent a repetition had been done. The mediation agreement used Version A  as the confidentiality clause. DD Trust agreed to full discussion of lessons learned, and a very successful and satisfying meeting for both teams was convened, albeit not until after seven hours of discussions had failed to produce agreement on damages and costs of the proceedings. These ‘litigation’ matters were settled a week or so later. The Tomlin Order schedule included commitment to a written apology from DD Trust and recorded the ‘lessons learned’ session as having taken place. Apart from telling their circle of friends what had happened, they did not seek wider publicity. Certainly there has been an increasing willingness on the part of NHS  Trusts to declare publicly their determination to learn from mistakes and to publicise improvements made in care and practice. This has made them less sensitive about keeping mediation outcomes entirely confidential3. A very public controversy over a number of deaths of patients at DD Trust preceded a mediation of a claim over the death of CCs’ child when an in-patient of that Trust, with claims for negligence and under the Human Rights Act (over right to life under EHCR, Article 8). There had also been a high profile inquest. The mediation was conducted as to confidentiality under the terms of version C above, as CC were determined to give as much coverage to the failures of DD Trust in question as possible. However, they fully understood that if a settlement was not reached, what transpired at the mediation would remain confidential. Terms as to damages and costs were agreed, and additionally it was agreed that a public apology would appear on DD Trust’s website for an agreed period of weeks. It is always possible to try to secure agreement about publicity and learning said to have arisen from what emerges during a mediation, and it is up to the parties whether they consent to this. What remains fundamental, however, is that the mediation discussions that led either to settlement or impasse remain confidential themselves, unless very specifically agreed otherwise. In those published court decisions that have considered this aspect of mediations (all of which have been at first instance), judges have been broadly determined not to let parties give evidence of what happened at mediations that did not lead to settlement. It has really only been in cases where impropriety is alleged against one commercial party by another – hardly a likelihood in the vast majority of clinical negligence mediations – that any appetite for peering behind the veil of confidentiality has been expressed. 3 See now the Postscript at p 213, and the new clause 4.1 in Appendix A.

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The legal and procedural framework in England and Wales

Non-binding clinical mediation discussions and binding settlements Mediation agreements in England and Wales also usually provide for the specific additional formality that nothing will bind the parties unless recorded in writing and signed by each party. This seeks to minimise any risk of uncertainty about what has been agreed, and adds a further layer of security to that which applies in RTMs, where there is no necessary formality to observe for any agreement to be binding. Where a mediation is convened and reaches settlement after issue of proceedings, the agreed terms will usually be embodied immediately in a consent order in Tomlin form, signed by the parties and lodged with the court to bring the proceedings to an end. In cases where proceedings have not yet been issued, a written settlement agreement will have to be drafted and signed at the mediation for it to be binding. Leaving it to be drawn up and signed allows time for a change of mind. In the very few cases where this provision has been considered, the court have broadly shown themselves ready to enforce this requirement. Indeed, if the parties agree to leave an offer open for acceptance for a set period of time, this too should be recorded and signed, to avoid any misunderstanding or suggestion that this was not agreed in those terms.4 Settlement agreements are, of course, binding contracts, the consideration for which is usually forgoing the right to sue or to continue to sue. Post-issue agreements will be similarly binding, with terms set out in the schedule to a consent order in Tomlin form, which stays the proceedings permanently on the scheduled terms, sets out the agreement as to the costs of the proceedings (which may need later detailed assessment by the court if not agreed); and otherwise only gives parties permission to apply to enforce those terms. The consent order may even refer not to a schedule lodged with the court but to a separate agreement, if there is particular sensitivity about its contents. The original settlement agreement can then be kept by one or other party or even the mediator or mediation provider. Given the importance to parties, especially claimants, of non-monetary extra-legal outcomes, it is important to note that in both pre- and postissue settlements, binding terms can be incorporated and enforced by the court, even though a judge could not have ordered them on giving judgment. So a judge could order an NHS body to deliver a course of treatment promised and recorded in the schedule to a Tomlin Order, even if only damages could have been awarded at trial. Specific performance of such an obligation contracted in a pre-issue settlement agreement would almost certainly be granted in enforcement proceedings if necessary.

4 Specimens of a settlement agreement and Tomlin Order in a clinical claim are to be found in Appendices E and F. See Brown v Rice & Patel [2007] EWHC 625 (Ch) as to the requirement for written settlement terms.

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The neutral mediator as a potential witness However, the courts will not enforce illegal terms. One of the few likely examples of this in the clinical sector is that courts are very likely to reject and refuse to enforce an undertaking by a claimant not to initiate disciplinary action by a regulator such as the General Medical Council, the Nursing and Midwifery Council or the Health Professionals Council, or a term preventing a claimant from giving evidence to a regulatory body or in criminal proceedings for manslaughter against a clinician. To agree or indeed to extract such undertakings as a price for agreeing compensation cannot be regarded as in the public interest, and is arguably contrary to public policy. No legal steps taken for enforcement of settlement terms in clinical claims based on alleged default in performance have ever been reported. Mediated settlements generally, and those in clinical claims specifically, have a vanishingly low failure rate. Almost all are against the NHS, an insurer or MDO, who will all pay what they agree, being able to afford to do so, and NHS  Trusts, GPs and private medical practice who have undertaken to deliver some kind of non-monetary outcome will be motivated to deliver them as agreed. The fact that parties freely agree terms makes it far more likely that they will be delivered as agreed in good faith, just as they were negotiated in good faith.

The neutral mediator as a potential witness Mediation agreements normally provide that neither party will call the mediator as a witness in later proceedings, and that if they try to do so, they will indemnify the mediator as to the mediator’s legal costs for resisting being called. The standard clause reads: ‘The Parties understand that the Mediator and CEDR do not give legal advice and agree that they will not make any claim against the Mediator or CEDR in connection with this Mediation. The Parties will not make an application to call the Mediator or any employee or consultant of CEDR as a witness, nor require them to produce in evidence any records or notes relating to the Mediation, in any litigation, arbitration or other formal process arising out of or in connection with their dispute and the Mediation; nor will the Mediator nor any CEDR employee or consultant act or agree to act as a witness, expert, arbitrator or consultant in any such process. If any Party does make such an application (as listed above), that Party will fully indemnify the Mediator or the employee or consultant of CEDR in respect of any costs any of them incur in resisting and/or responding to such an application, including reimbursement at the Mediator’s standard hourly rate for the Mediator’s time spent in resisting and/or responding to such an application’5. 5 See the CEDR Model Mediation Agreement (2018 edition) cl 6.

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The legal and procedural framework in England and Wales While a simplistic approach might be that if a court wants to investigate, say, alleged impropriety at a mediation leading to a challenge to apparently agreed settlement terms, the mediator would be the person best placed to give impartial evidence about what happened, this is clearly highly undesirable from the point of view of protecting the integrity of both mediator and mediation process. A  mediator needs to be unswervingly neutral to gain and retain the trust of both parties. That trust is put to considerable test by the fact that mediators actually spend time with each party in private for a lot of the time in many mediations. Each party needs to believe that when the mediator is in the room with their opponent, the mediator will be behaving just as neutrally as when with them. Nothing can be more damaging to that sense of a safe process than to fear that if anything were to go wrong, the mediator might suddenly be compelled to give evidence in a public court about what happened during the mediation, certainly in joint meetings but even possibly in private meetings with both parties. Bear in mind too that the mediator has contracted to keep private anything heard in private meetings unless otherwise authorised. The usual clause reads: ‘Where a Party privately discloses to the Mediator any information in confidence before, during or after the Mediation, the Mediator will not disclose that information to any other Party or person without the consent of the Party disclosing it, unless required by law to make disclosure’6. The judge who seeks to compel a mediator to give evidence of a private meeting at a mediation presumably might take refuge in the last qualifying phrase, but this will be of little comfort to any party who fears that the mediator may give evidence that is adverse to that party’s interests, and thus perceived as far from neutral. Nor will it be of comfort to a mediator who feels that the judge is subverting their role in the eyes of those parties to whom confidentiality commitments were made. Fortunately such problems have rarely arisen in practice. There is only one case in English law where a judge ordered a mediator to give evidence (over a frankly improbable allegation that economic duress had leveraged a settlement out of another commercial party): there the claim was discontinued as soon as the witness order was made and the mediator never had to give evidence7. The mediator stoutly contested the court’s right to call her and was awarded her costs for doing so, having succeeded, at least in part, in resisting being called. In one other commercial case, a mediator appears (very surprisingly) to have consented to give evidence about post-mediation negotiations8.

6 See the CEDR Model Mediation Agreement (2018 edition) cl 5. 7 Farm Assist v DEFRA (No 2) [2009] EWHC 1102 (TCC). 8 AB v CD [2013] EWHC 1376 (TCC).

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The place of mediation within the CPR It is extremely unlikely that any party to a clinical negligence mediation will want to call a mediator about what happened. If they try, the cost of doing so may be levied, and may prove unattractive. Very often best evidence can be obtained from other sources in any event.

Mediation fees and costs The mediation agreement provides for payment of the mediator’s fee, which is either paid by the defendant funder or split equally between the parties in advance of the mediation. When a mediation is set up through a mediation provider organisation, the mediator may not know on which basis the mediator fee will be paid, and will not allow that to affect the fundamental neutrality of the mediator’s job. Whether or not the mediation achieves settlement, the agreement to mediate provides that the legal costs incurred in preparing for the mediation and the mediator’s fee will be treated as costs in the case for the purposes of the litigation and any detailed assessment of costs.

The place of mediation within the CPR One of the striking and novel features of the Civil Procedure Rules 1998 (CPR) when they were introduced was the content of Part 1 of the Rules, which set out the overriding objective of the civil courts. It should hardly need reminding that, as amended by the Jackson reforms of 2013, the purpose of the CPR and its overriding objective are described as follows at their very outset: ‘1.1  The overriding objective (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as practicable, (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with cases in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; 53

The legal and procedural framework in England and Wales (e) allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders. 1.2  Application by the court of the overriding objective The court must seek to give effect to the overriding objective when it: (a) exercises any power given to it by the Rules; or (b) interprets any rule, subject to rules 76.2, 79.2, 80.2, 82.2 and 88.2. 1.3  Duty of the parties The parties are required to help the court to further the overriding objective. 1.4  Court’s duty to manage cases (1) The court must further the overriding objective by actively managing cases. (2) Active case management includes— (a) encouraging the parties to co-operate with each other in the conduct of the proceedings; (b) identifying the issues at an early stage; (c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; (d) deciding the order in which issues are to be resolved; (e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate, and facilitating the use of such procedure; (f) helping the parties to settle the whole or part of the case; (g) fixing timetables or otherwise controlling the progress of the case; (h) considering whether the likely benefits of taking a particular step justify the cost of taking it; (i) dealing with as many aspects of the case as it can on the same occasion; 54

The place of mediation within the CPR (j) dealing with the case without the parties needing to attend at court; (k) making use of technology; and (l) giving directions to ensure that the trial of a case proceeds quickly and efficiently’. The portions particularly relevant to court encouragement of mediation are in bold type. These words, which are now so familiar to litigation lawyers in England and Wales came as an entirely new concept to those in practice in 1998 when first promulgated. They encapsulated Lord Woolf’s aim of changing the culture of litigation, and creating a system in which all legal professionals, including judges, were expected to co-operate to improve access to civil justice for its users (always remembering that Lord Woolf’s reports were entitled Access to Justice). In relation to mediation, the value of alternative dispute resolution (ADR) received specific recognition for the first time in CPR 1.4(2)(e). CPR 26.4 also provided for the court to stay proceedings for ADR for a set period, on joint or separate application or on its own motion, at what was then called allocation stage (now directions stage) in any defended action. Additionally the use of pre-action ADR was encouraged by the first Pre-action Protocol for the resolution of clinical disputes. But the most potent influence on the development of mediation use derived from the CPR has proved to be the costs provisions of Part 44, the key provisions of which are as follows: ‘44.2  Court’s discretion as to costs (1) The court has discretion as to— (a) whether costs are payable by one party to another; (b) the amount of those costs; (c) when they are to be paid. (2) If the court decides to make an order about costs— (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order. … (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including— (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; 55

The legal and procedural framework in England and Wales (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer made in accordance with Part 36. (5) The conduct of the parties includes— (a) conduct before as well as during the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-action Conduct) or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim’. Again, the most relevant passages are in bold type. Unreasonable litigation conduct could now be penalised in costs, whether by a claimant or defendant, or a winner or loser. It was soon predicted that a court might well find that a party could face a costs sanction if they declined to mediate, since ADR was now part of the court’s remit in delivering active case management. A winner who refused to mediate might receive reduced costs, and a refusing loser might face indemnity instead of standard basis costs. This happened for the first time in 2002 in Dunnett v Railtrack9, when the Court of Appeal refused to order Mrs Dunnett to pay Railtrack’s costs of her unsuccessful appeal against dismissal of her case. The court found that Railtrack unreasonably refused to mediate with her, asserting that it was pointless to do so as they were going to win (a correct prediction, as it turned out). In words which particularly relate to mediating clinical negligence claims (although this was not such a case), Brooke LJ said: ‘Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the power of the court to provide’10. 9 [2002] EWCA Civ 303. 10 At para 14.

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The place of mediation within the CPR If the word ‘mediation’ is substituted for ‘the mediator’ in the last two sentences, bearing in mind that a mediator is not a decision-maker or adviser, this dictum paints a very fair picture of what mediation can achieve, and it has often been quoted in later judgments. Dunnett was subjected to equal praise and criticism by commentators at the time, but it remains good law and has not been overruled. It led to considerable rethinking about the role of mediation and other forms of ADR. While ADR ‘orders’ (really robust directions or recommendations in nature) had been made in the Commercial Court for nearly ten years by then, such orders were not common in the Queen’s Bench Division. It was in relation to clinical claims that the first attempt was made to make an order there, when QB Master Ungley devised an order in the following terms, usually made at the last case management conference before a trial date was fixed: ‘The parties shall by [Day 1] consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make. The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable’. This kind of order (with its own form of sanction for non-compliance built into it) was used regularly, despite its only being added late in the life of any action. Senior QB Master Fontaine has devised an earlier order which is now usually made at the first costs and case management conference after directions have been made in a contested claim: ‘At all stages the parties must consider settling this litigation by any means of ADR (including [round table conferences, early neutral evaluation] mediation [and arbitration]) and in any event no later than [date]: any party not engaging in any such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the judge until questions of costs arise’. Different directions include different options for the ADR processes set out in square brackets, according to the taste of the judge: sometimes mediation alone is mentioned, sometimes the full suite of processes. This direction is made much earlier than the Ungley order, and generates a continuing obligation to try to settle, expressed in firm mandatory language. The sanction for non-compliance with these ‘orders’ or directions is not of course a penalty for contempt of court, nor the risk of a claim or defence 57

The legal and procedural framework in England and Wales being struck out, but a costs sanction, based on the thinking behind Dunnett and CPR 44.3. Nor does either ‘order’ actually mandate mediation: it allows for the possibility that there may be good reason for not trying to settle, but requires formal justification of those reasons when it comes to deciding costs at the end of trial. With trials so rare in clinical claims, the importance of these directions lies not so much in the infrequent cases where those reasons are actually canvassed at a post-trial costs hearing, but in the influence they have on the conduct of litigation earlier than trial.

Pre-action conduct and the Pre-Action Protocol for the Resolution of Clinical Disputes As CPR  44.2(5) specifically empowers judges to penalise unreasonable litigation conduct which takes place before, as well as after, the issue of proceedings, it is important to be clear about the standard of conduct expected of parties and lawyers during a time when the court has no actual supervisory power other than in retrospect. Another innovation of the CPR was the introduction of Pre-action Protocols (PAPs) designed to define reasonable pre-action conduct. Originally drafted by the Clinical Disputes Forum, a group with charitable status with representatives from all sides of the clinical disputes world, the PAP ‘for the Resolution of Clinical Disputes’ was one of the first two PAPs promulgated in 1999. It was revised and reissued in 2015, following further work by the Clinical Disputes Forum and the Civil Procedure Rules Committee. It applies to all claims against hospitals, GPs, dentists and other healthcare providers (both NHS and private) which involve an injury that is alleged to be the result of clinical negligence. It is regarded by the courts as setting the standard of normal reasonable pre-action conduct for the resolution of clinical disputes. Although the entire Protocol is included in Appendix G, it is worth setting out some of its provisions here too, especially as they relate to the possibility of deployment of mediation before issue of proceedings. ‘1.3 It is important that each party to a clinical dispute has sufficient information and understanding of the other’s perspective and case to be able to investigate a claim efficiently and, where appropriate, to resolve it. This Protocol encourages a cards-on-thetable approach when something has gone wrong with a claimant’s treatment or the claimant is dissatisfied with that treatment and/ or the outcome … 2.1  The general aims of the Protocol are— (a) to maintain and/or restore the patient/healthcare provider relationship in an open and transparent way; (b) to reduce delay and ensure that costs are proportionate; and (c) to resolve as many disputes as possible without litigation’. 58

Pre-action conduct and Pre-Action Protocol Among its specific aims, the following appear: ‘2.2 …. (f) to enable the parties to avoid litigation by agreeing a resolution of the dispute; (g) to enable the parties to explore the use of mediation or to narrow the issues in dispute before proceedings are commenced; … (k) to promote the provision of medical or rehabilitation treatment to address the needs of the claimant at the earliest opportunity; and (l) to encourage the defendant to make an early apology to the claimant if appropriate’. The Protocol, as revised, contemplates six main steps to be taken before proceedings may properly be commenced: (1) the prompt disclosure of medical records; (2) co-operative consideration of any possible rehabilitation; (3) a Letter of Notification (LoN), which does not set out the claim in full, but puts the defendant on notice of a claim and gives them the chance to consider early investigation; (4) a Letter of Claim (LoC), which sets out the claim in full after investigation by the claimant; (5) a Letter of Response (LoR), required within four months of the receipt of the LoC (though that period is quite frequently extended by consent); (6) a review including ADR and a stocktake when settlement should be considered. Failure to comply in substance with the PAP procedure before issuing proceedings gives rise to the possibility of costs sanctions, although a degree of flexibility to suit each case is contemplated and the PAP makes it clear that minor infractions are likely to be excused. ADR and stocktake are specifically dealt with in sections at the end of the PAP. Section 5 is headed ‘Alternative Dispute Resolution’, and reads: ‘5.1  Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of alternative dispute resolution (“ADR”) might enable them to resolve their dispute without commencing proceedings. 5.2  Some of the options for resolving disputes without commencing proceedings are— 59

The legal and procedural framework in England and Wales (a) discussion and negotiation (which may or may not include making Part 36 Offers or providing an explanation and/or apology) (b) mediation, a third party facilitating a resolution ; (c) arbitration, a third party deciding the dispute; (d) early neutral evaluation, a third party giving an informed opinion on the dispute; and (e) Ombudsmen schemes. 5.3  Information on mediation and other forms of ADR is available in the Jackson ADR  Handbook (available from Oxford University Press) or at— • www.civilmediation.justice.gov.uk/ • www.adviceguide.org.uk/england/law_e/law_legal_ system_e/law_taking_legal_action_e/alternatives_to_court. htm 5.4  If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR, but a party’s silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs’ [author’s emphasis – see below for comment on this sentence], Finally, section 6 is headed ‘Stocktake’ and reads: ‘6.1.1  Where a dispute has not been resolved after the parties have followed the procedure set out in this Protocol, the parties should review their positions before the claimant issues court proceedings. 6.1.2  If proceedings cannot be avoided, the parties should continue to co-operate and should seek to prepare a chronology of events which identifies the facts or issues that are agreed and those that remain in dispute. The parties should also seek to agree the necessary procedural directions for efficient case management during the proceedings’. The most obvious consequence of the PAP – as with the 12 other PAPs covering different areas of law and practice, is the requirement to prepare both claim and defence very fully before issuing proceedings, with consequently considerable investment of time and cost in doing so at the outset of any claim. The time and expense of ‘front-loading’ of this kind 60

Pre-action conduct and Pre-Action Protocol was much criticised when introduced by the CPR, even if it represented a healthy antidote to the one-line letter of claim followed by a writ which represented the worst end of the litigation practice spectrum before the CPR. But it follows that where there is a requirement for investment in early work, there should also be an expectation that settlement should be facilitated by it, and that in many cases it should be clear before issue whether each claim can be settled. Court fee policy has, in recent years, sharpened the need for considering seriously whether to issue proceedings, when for a claim of £250,000 or more (by no means rare in clinical claims) a court fee of £10,000 has to be funded. Yet there is little evidence to suggest that the courts have exercised their case management powers to discipline parties who fail to consider ADR or engage in a mutual stocktake of the case before the issue of proceedings. This is strange in a civil justice system which specifically takes the view that each case can only take an appropriate and proportionate amount of the court’s attention. There is a significant clash of judicial ideology between those who assert the ‘proportionate share’ view of access to the courts and those who accept and assert that every litigant is entitled to their day(s) in court without any realistic restriction. This dichotomy of view is vividly analysed in John Sorabji’s book, English Civil Justice after the Woolf and Jackson Reforms11. Enthusiasts wanting to delve in detail into this area of dispute are referred to his book. Suffice it to say here that the wording of the CPR Part 1 seems clear, quoting it again: ‘1.1(2)  Dealing with a case justly and at proportionate cost includes, so far as practicable: (e) allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders’. Paragraph  1.1(2)(f) was added in April 2013 as a result of the Jackson reforms, when the need to stiffen the disciplines required by the CPR was seen as necessary. Yet there is no sign of judicial criticism of parties if they fail to attempt to settle a case before it is issued. With the current adversarial mind-set, it presumably would take one party to accuse the other of failure to attempt to settle. But there must be just as much likelihood that both lawyers will accede to the issue of proceedings without trying to settle, which would mean that policing of such an obligation would be required of the court, to be raised on its own initiative. It is interesting too to contrast the conditionality and optionality of language used throughout the PAP – parties ‘should’ do things – with 11 J Sorabji, English Civil Justice after the Woolf and Jackson Reforms (Cambridge University Press, 2014).

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The legal and procedural framework in England and Wales the language of the standard Fontaine directions order – ‘at all times the parties must’ consider settling by any means of ADR’. As is asserted in Chapter 6, mediation between the end of the protocol process and before issue of proceedings ought to be seriously considered in most cases to capture the information exchange dividend which the PAP is intended to generate. While there will be cases which would be difficult to settle responsibly then, there will be many in which experienced lawyers should be perfectly able to advise on their client’s chances of success over breach of duty, causation and on valuation, thus at least giving the parties a realistic chance to explore an acceptable settlement. A final note on the words which appear above in bold in paragraph 5.4 of the PAP, namely: ‘it is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR’. This is a phrase that appears fitfully and inconsistently in various other Pre-action Protocols and does not appear at all in the over-arching Practice Direction: Pre-action Conduct. As they stand, those words are at the very least controversial and at worst inaccurate and misleading, as will be seen below in the discussion of Halsey v Milton Keynes NHS Trust. Firstly, it is not only where a party is silent in response to an invitation to mediate that a costs sanction might be imposed (as established by the Court of Appeal in PGF v OFMS). A party who positively responds by unreasonably declining to mediate can also be sanctioned. Secondly, what else does the risk of a costs sanction do apart from ‘forcing’ a party into mediation? And if the sentence is amended to read ‘It is expressly recognised that no party can or should be forced to try to settle’ (distinguishing that firmly from ‘forced to settle’, which obviously cannot happen) is this really something that a civilised civil justice system with finite resources which need proportionate allocation as between litigants should go on record as saying? Halsey v Milton Keynes NHS Trust and pre-action and post-action mediation It so happens that the leading case on mediation and costs sanctions – Halsey v Milton Keynes NHS  Trust12 – arose out of a clinical negligence claim. The appeal with which it was joined, a motor accident claim involving successive torts and disputing insurers called Steel v Joy and Halliday, is now hardly remembered. Halsey is so important that a brief summary is necessary. Mr Halsey died in the defendant hospital and Mrs Halsey decided to sue, following a coroner’s inquest. Her solicitor proposed mediation several times before issuing proceedings, but the Trust refused to mediate, taking the view that the Trust would win. Mrs Halsey’s solicitor repeated the proposal to mediate after issue of proceedings, 12 [2004] EWCA Civ 576.

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Pre-action conduct and Pre-Action Protocol writing several strong letters threatening costs sanctions if they refused, including one to the Department of Health to complain about the Trust’s refusal to mediate. The Trust maintained its refusal. Mrs Halsey’s claim against the Trust was funded by a conditional fee agreement but without any protective insurance to pay the Trust’s costs if she lost. She did lose at trial and sought to escape an adverse costs order by arguing that the Trust had unreasonably refused to mediate. She lost on that too and appealed. Two mediation organisations – ADR Group and CEDR – and the Law Society were allowed to intervene with written and oral submissions to help the court. In a unanimous judgment given by Lord Dyson, the Court of Appeal declined to impose a costs sanction in either appeal, taking the opportunity to set out what they felt was the correct approach when the court was asked to sanction refusal to mediate. There is no room for a detailed discussion of the full impact of the decision, as developed and applied variously in many judgments over the years since 2004, so what Halsey did and did not decide, as modified by later opinion, is summarised as follows: • the view was unfortunately expressed that for a court to order an unwilling party to mediate would be in contravention of that party’s right to a public trial under Article  6 of the European Convention on Human Rights. As Mrs Halsey’s case was not about ignoring a purported court order to mediate, but about an inter-party offer and refusal to mediate, this view was obiter (ie it is not strictly binding as a precedent because that principle as enunciated was not based on the facts of the appeal). This view has been much criticised ever since, as it appears to overlook the fact that mediation is not an entirely alternative process, and that there is a free route back to trial if settlement is not achieved. Lord Dyson has himself since conceded in several speeches that in principle this view was not correct, while remaining personally of the view that it is not appropriate for a court to compel unwilling parties to mediate13; • imposing a costs sanction where one party unreasonably refused an inter-party invitation to mediate – as happened in Dunnett – was a proper step to take in certain circumstances; • if a direction or ‘ADR Order’ to mediate is made, then to ignore that might of itself justify a costs sanction. As the Fontaine order is made in almost every clinical case now, this means that unless there is a good reason for not mediating, a sanction is theoretically possible; • it was for the party who sought a sanction (usually the loser at trial) to establish that the normal costs assumption in favour of a winner should be displaced, albeit not a heavy burden; • there were six factors which a successful party might use to excuse a refusal to mediate (there may be others): 13 Eg to a symposium organised by the Chartered Institute of Arbitrators in October 2010.

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The legal and procedural framework in England and Wales (1) that the case was not suitable for ADR; (2) the winner had a reasonable belief that their case was watertight; (3) that previous efforts had been made to settle; (4) that mediation would have been disproportionately costly; (5) that mediation would have delayed a trial date; (6) that mediation had no reasonable prospect of success, In the years since Halsey, judges have rarely, if ever, been asked to excuse refusal to mediate on the basis of factors (1), (3), (4) or (5). Few cases (and arguably no clinical claims) are inherently unsuitable for mediation at some time in their life cycle. Mediation can succeed where prior attempts to settle, even at an RTM, have failed. Being so quick to set up, mediation is highly unlikely to disrupt a trial date. Where an expensive trial has happened, an argument that mediation would have been too expensive is hardly likely to impress. Factors (2) and (6) have been the most deployed. But where they have chosen to do so, judges have readily rejected attempts to avoid sanctions based on factors (2) and (5). In other cases they have declined to impose sanctions. The overriding message is that it is very hard to predict whether it is safe to refuse to mediate. One of the most telling dicta to emerge from a decision where sanctions were imposed is in Garritt-Critchley v Ronnan14, when Judge Waksman QC said, when invited to find that the parties had been too far apart to make mediation worthwhile: ‘Parties don’t know whether in truth they are too far apart unless they sit down and explore settlement’. One further Court of Appeal decision must be mentioned again, namely PGF v OFMS II. The judgments in both the trial in the Technology and Construction Court and the Court of Appeal15 repay study. Its overall effect is to establish that if a party simply ignores an inter-party proposal to mediate, that of itself will probably justify a costs sanction. It is incumbent to reply and suggest why not now, or why not all. But simply to ignore is dangerous. The trial judge went further, in suggesting that it should not be necessary for every piece of evidence, including expert opinions, to be in place before attempting to mediate. This view is of particular importance in clinical cases, where the assembly of expert evidence is often not complete until shortly before trial. It is worth repeating the words of Deputy High Court Judge Stephen Furst QC, he having prior professional experience of mediation: ‘Experience suggests that many disputes, even more complex disputes than the present, are resolved before all material necessary for a trial is available. Either parties know or are 14 [2014] EWHC 1774 (Ch). 15 [2012] EWHC 83 (TCC) and [2013] EWCA Civ 1288.

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Pre-action conduct and Pre-Action Protocol prepared to assume that certain facts will be established or, during the course of a mediation, such information is made available, often on a without prejudice basis. The rationale behind the Halsey decision is the saving of costs and this is achieved (or at least attempted) by the parties being prepared to compromise without necessarily having as complete a picture of the other parties’ case as would be available at trial. It might well be a legitimate reason for postponing a mediation if essential information was requested and refused and in such circumstances no adverse costs order might be made, but this was not the position here’16. The Halsey decision has taken on particular significance since NHSR, and some of the MDOs have adopted a policy of utilising mediation in clinical claims. There was an irony about the fact that it was the NHSLA who were seeking to explain away refusal to mediate. Early in the Halsey judgment Lord Dyson actually quotes a recently published initiative taken by the NHSLA: ‘The encouragement of greater use of mediation, and other forms of ADR, is one of the options considered by the NHSLA, who are responsible for handling clinical negligence claims against the NHS. The NHSLA is working with the Legal Services Commission to develop a joint strategy for promoting greater use of mediation as an alternative litigation in clinical negligence disputes. Since May 2000 the NHSLA has been requiring solicitors representing such bodies to offer mediation in appropriate cases, and to provide clear reasons to the Authority if a case is considered inappropriate’17. That might be a fair description of what NHSLA (and now NHSR) has been doing in relation to its mediation pilot scheme in 2014–15 and its permanent mediation scheme commenced in December 2016. It may come as a slight surprise to see that it was also a publicly-adopted policy of NHSLA as long ago as 2000, in view of the relatively few mediations of clinical claims against the NHS that were convened between 2000 and 2014. But certainly there are signs that, since 2014, NHSR policy has put mediation of clinical claims firmly on the agenda. The importance of Halsey and PGF is that those decisions provide parties who wish to mediate with back-up to such proposals to mediate. An unjustified refusal to mediate may deprive a refusing party of costs they would otherwise be awarded. Many, if not most, clinical negligence claims are funded on conditional fee agreements on a no-win-no-fee basis, so a refusal to mediate is a direct threat to claimant lawyer fee income where defendants offer or propose mediation. Conversely, if a claimant wishes to mediate and the defendant 16 At para 45.1. 17 At para 7.

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The legal and procedural framework in England and Wales refuses, the claimant may try to seek indemnity costs for the period of the claim after their refusal. But even if these threats exist, it is to be hoped that given time and growing experience of mediation, lawyers for both claimants and defendants who are unenthusiastic about mediation and reluctant to use it will come to realise the benefits that choosing this process can confer on achieving their clients’ aims, as well as the benefit for them as practitioners in all the ways that this book sets out to explain. Lord Dyson is quite right in suggesting that mediation is best chosen positively and voluntarily, rather than under any sense of duress. But if mediation is perceived by the courts to being in the interests both of litigants and the civil courts themselves, even if not desired by lawyers, that view may justify a period of external pressure on parties to use the process. Halsey and subsequent cases provide the main tools for doing so, if needed.

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Chapter 4

Coping with legal and clinical technicalities

Those with experience of clinical negligence litigation, who are used to dealing with the intricacies of expert medical evidence, may not need to dwell on this chapter. There may, though, be some potential mediators in this field who would value a summary both of law and legal practice as it relates to clinical claims, and also guidance on how to approach the task of understanding clinical issues sufficiently to manage mediation discussions with confidence. What may still interest even lawyers with clinical claims experience is the debate about what qualifications any mediator of such cases should have, and why. The aim of this chapter is to make it easier for mediators without extensive experience of the medico-legal field to deliver the mediation process with at least some appreciation of the legal framework in which clinical mediations operate, while encouraging them to think that the mediation skills they bring are still of paramount importance, even if this is a less familiar legal environment for them. The chapter concludes by making some suggestions as to how to deal with medical issues arising in such cases. This is inevitably a very cursory review of this topic, in which there are many very substantial textbooks. But it is hoped that this chapter will give enough to mediators venturing into the field to be able to understand what is going on, and to believe that they do not have to understand law and medicine in detail to be able to do a good job.

The parties to clinical claims It is normally a straightforward process to identify who is claiming. The person who alleges that harm was caused to them through a medical accident will normally be the claimant. If, however, the allegedly injured person does not have legal capacity – for instance a minor or an adult mental patient – that person will still be the nominated claimant, but they must act through a Litigation Friend named in the proceedings, usually a parent or other relative. There may be several claimants joined in one case, if for instance a number of people claim to have suffered similar damage inflicted by the same defendant. While the first named claimant may be the primary victim, there may also be claims made by so-called ‘secondary victims’. For instance, if negligent damage is said to have been directly inflicted on a new-born child as 67

Coping with legal and clinical technicalities the primary victim, the mother and father may also allege physical or psychological damage as ‘secondary’ victims, having undergone and witnessed the trauma of their new-born child’s birth. The courts are cautious about recognising secondary victim claims. In effect it is necessary to have suffered harm in close proximity to the damage done to the primary victim. A global settlement may be able to be used to blur the precise allocation of compensation to primary and secondary victims, where the claimants are spouses: C1 claimed as primary and secondary victim and C2 (her husband) as secondary victim for negligence and breach of rights under the European Convention on Human Rights (ECHR), Article 2 over the death of their new-born first child three years previously. The mediation started with powerful statements from each claimant about what happened, with no discussion of the legal issues then. DD Trust offered a further full written explanation dealing with all outstanding concerns. DD Trust bid a significant five-figure sum, plus standard basis costs. The claim was settled after a seven hour mediation at a somewhat higher figure plus costs, at the level of the last bid by CC. As to NHS defendants, if proceedings are brought only against a hospital in relation to NHS care, the only defendant will normally be the relevant NHS  Trust or Foundation Trust, even if damage is said to have been caused by an identified healthcare professional employed by that Trust. This is because Crown indemnity applies to all NHS Trusts, so that the NHS takes responsibility for negligent acts or omissions committed by any of its hospitals or its staff. This has simplified the handling of claims where negligence in hospital care is alleged, by making it possible for centralised case handling by NHS  Resolution (NHSR). Even in cases where allegations are brought against more than one hospital Trust, NHSR will handle the defence of multiple Trust defendants, though the case against each will be assessed separately on its merits. NHSR will instruct one of its panel law firms to deal with legal work on claims brought against Trusts, and they are often involved before proceedings are actually issued. Where claims are made against general practitioners and dentists, however, whether in relation to their NHS or private practice, the defence of such claims will be handled by one of the Medical Defence Organisations (MDOs) who offer indemnity against claims, effectively as insurers. They will also indemnify consultant doctors in relation to their private medical practice in their private consulting rooms and in work done at private clinics and hospitals. It may be necessary to add a private hospital as a defendant in a claim against a consultant if allegations extend to the hospital’s own direct employees, such as nurses, radiologists and pathology staff, since there is nothing comparable to Crown indemnity in private medical practice. 68

A brief outline of court procedure in clinical claims If the same case contains allegations of successive mistakes made by professionals in general practice, private healthcare and NHS  Hospital Trust care, there will be three or more defendants, probably all separately represented. It is possible but unusual for any of those multiple defendants to try to pass the blame to each other. Where defendants simply defend the claim brought against each of them without trying to pass the blame on to other defendants, it is the claimant who bears the risks of paying costs to any defendant against whom he does not win, and a losing defendant is only liable for the claimant’s costs and not another successful defendant. Chapter 8 looks in detail at the special problems presented by multiple claimants and defendants, and Chapter 9 at costs and funding.

A brief outline of court procedure in clinical claims The steps usually taken by the claimant (C) and defendant (D) in a civil court to process a clinical claim are as follows. Pre-issue • C seeks the medical notes from D; • C  sends a Letter of Notification to D  which warns of a claim: D can choose to start investigating it; • C sends a formal Letter of Claim detailing the claim; • D  sends a Letter of Response within four months unless extended by agreement, detailing the extent to which the claim is defended or admitted; • C  and D  consider ADR and stocktake before issue of proceedings: mediation may well be considered at this point. Post-issue •

C issues Claim Form (should be within three years of the event, unless time has been extended by agreement, or the claimant lacks legal capacity) and serves within four months;

• C serves Particulars of Claim, setting case out in full; • D serves Defence; • direction by Court fixes initial timetable and allocates to multitrack: mediation might be considered at this stage; • Costs and Case Management Conference (CCMC) sets casespecific budget and further directions: if breach of duty and causation are in dispute, trial of these issues first might be ordered now, especially in high value claims; 69

Coping with legal and clinical technicalities • disclosure of evidence, documents and joint meetings of experts, plus any necessary further CMC: mediation is often proposed between now and trial; • case set down for trial, if necessary with Pre-Trial Review; • trial.

Negligence claims: breach of duty Every mediator of clinical claims in England and Wales needs to appreciate the significance of the ‘Bolam principle’ or test. Every common law jurisdiction will have its own equivalent authority which provides the legal foundation for whether a clinician is to be found in breach of duty or negligent. In England and Wales, the leading case on this is Bolam v Friern Hospital Management Committee1, in which the court decided that: ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical [practitioners] skilled in that particular art … Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion which takes a contrary view’. The only real extension to this test in English law derives from the case of Bolitho v City and Hackney Health Authority2, where the House of Lords broadly approved the Bolam test, but said that it was still open to a court to find that a body of opinion might not withstand logical analysis in the light of the risks and benefits of a particular act or decision not to act. Such judicial intervention is infrequent, and the Bolam principle is by far the most usual test applied in deciding whether clinical negligence is made out. But occasionally, lawyers may argue that in a particular case or for a particular reason Bolitho applies to modify the Bolam test. The effect of the Bolam principle is to place the responsibility for the standard to be applied to any clinical decision in the hands of the appropriate branch of the medical profession, with their views being laid before the court by expert clinical witnesses. Only if it is patently illogical for a certain course to have been taken and approved by ‘a body of opinion’ can a judge in effect overrule medical opinion, and this is rare. What happens in practice is that the claimant will have sought support from a qualified expert to say that what happened did not accord with a ‘reasonable body of opinion’ and the defendant will seek an expert who says that it did. Where there is disagreement (as there will inevitably be in any contested case) the judge will have to decide whether or not a reasonable body of opinion would support that act or omission, after seeing each side’s advocate test 1 [1957] 2 All ER 118. 2 [1997] 4 All ER 771.

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Negligence claims: breach of duty out the other side’s expert in adversarial cross-examination. If the judge finds that an act or omission was not supportable by a reasonable (and logical) body of medical opinion, appropriate for the level of clinician involved (whether junior, senior, consultant, nurse or GP), then breach of duty is established. A defendant can be liable for omissions as well as positive acts. For instance a mental health Trust can be found liable for failing to keep a patient safe from self-harm (whether deliberate suicide or accidental death). The burden of proving a claim lies with the claimant always, but the burden is a civil standard, which is proof ‘on the balance of probabilities’ – in other words, is it likelier than not that something happened or was said, or would have been the outcome, and overall that the defendant was negligent. The criminal law burden of proof is ‘beyond reasonable doubt’, a much higher threshold, and it does not apply in clinical civil claims, only in criminal prosecutions for gross manslaughter against a healthcare professional. In any mediation of a contested clinical negligence claim, the mediator will be sent expert reports from each party. Those reports consider whether what was done or not done was in accord with a reasonable body of opinion in that field. If the mediation precedes issue of court proceedings, expert reports may not yet have even been disclosed by either party to the other. Certainly the experts will not have conferred to define where they agree and disagree. However, late in the life of issued proceedings experts are required to confer and clarify where they agree and disagree by CPR Part 35, at which stage the mediator may receive the joint report of that discussion, with the issues narrowed. The mediator will not, of course, be expected to consider whether any expert opinion is right or better than another: that is the job of each party’s advisers. But it is wise for the mediator to develop some sense of where the expert differences in opinion may lie. When it comes to whether consent to treatment has been properly obtained, the position is now governed by the UK  Supreme Court’s decision in Montgomery v Lanarkshire Health Board3, a Scottish case with application throughout the UK, which confirmed the concept of informed consent in English and Scots law. Informed consent means that: ‘an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test 3 [2015] UKSC 11.

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Coping with legal and clinical technicalities of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’. The only noted exceptions are where to seek consent would endanger the patient, or in cases of extreme urgency or necessity. Informed consent may be a matter of expert view, but this is an area where the patient’s view of what is a material or significant risk can be important. It is also an area in which disputes as to fact can arise, something not often encountered in clinical claims, with claimant and defendant disagreeing over what was said. Medical records are an important source of evidence, but disputes may arise as to their adequacy or correctness. Claims may now be also brought against a public institution, such as a NHS hospital, for breaches of the ECHR, especially Article  2 (right to life), Article 3 (banning inhuman or degrading treatment or torture) and Article  8 (right to respect for private and family life). These claims are discussed in greater detail later in this chapter.

Negligence claims: causation Breach of duty may be established or even conceded, but there is a further significant hurdle for a claimant to surmount before compensation can be awarded, in that it is essential to prove (again on the balance of probabilities) that the breach caused damage. This is rarely a problem in a road traffic claim, but it can be a major problem in a clinical claim. Medical intervention only takes place if there is something to improve. Except in birth injury cases to mother or child, any patient is by definition already suffering a clinical deficit of some kind, whether minor or major, and whether from illness or accident, which calls for reversal or at least improvement. If the intervention was somehow negligent, the outcome for the potential claimant must be measurably worse than it would have been if the negligent intervention had not been undertaken. For instance, it may not be possible to prove that someone with terminal disease who was treated negligently would have recovered or enjoyed prolonged life of better quality ‘but for’ the negligence. Where something goes wrong, it is human nature for a claimant to attribute all pain, suffering and loss since then to the negligent treatment. Even in obstetrics and gynaecology cases, where the norm for both mother and baby should be a normal healthy state, causation issues may still arise. A child with cerebral palsy may have had some genetic syndrome which would have impacted on its capacities in any event. A  bad tear in the perianal area might arguably in any event have led to incontinence in a mother. 72

Negligence claims: causation Courts will only compensate the claimant for whatever additional pain, suffering and loss is attributable to the negligence, over and above what would have been suffered anyway because of the underlying condition requiring medical intervention in the first place. A causation argument can be used both to challenge whether any damage is attributable to an event at all, and also to curtail the period over which damage can be claimed. Defendants often argue that causation is not made out, either in full or only to a limited extent. This can in effect deprive a claimant of a remedy or reduce a large claim into a small one, even though breach of duty has been established or admitted. At a mediation involving such issues, discussions will probably centre on what would have happened anyway ‘but for’ the negligence, and not just on what did happen once the negligence had occurred. This is a difficult concept for lay parties to grasp and then to accept, and it is important that mediators understand the impact that a challenge to causation can generate on a claim. Here are some typical cases in which each claim was settled on the basis that some of the damage was attributable to negligence and some was probably unavoidable: in the first two oncology cases because the necessary radiotherapy treatment generated inevitable side-effects, and because there was evidence that earlier diagnosis would not have produced a markedly different surgical outcome; and in the third psychiatric case because there were doubts as to whether the deceased would have been able or prepared to support his family on discharge from prison: C sought advice repeatedly over four months for perianal bleeding, but was only diagnosed with a rare anal cancer too late to avoid a permanent stoma. Breach of duty was admitted, as were damages relating to the resulting stoma, but DD Trust argued that much of the damage, including the high level of care costs claimed, resulted from the unavoidable radiotherapy and chemotherapy treatment necessitated anyway by the cancer. A claim at its highest of over £2 million, based on all damage being attributable to the late diagnosis, was settled for a significant six figure sum plus costs. *** C sued DD Trust over the fact that a facial lesion diagnosed as benign was found to be cancerous over a year later, requiring extensive surgical intervention. DD argued that the cancer was normally very slow growing and that surgery when C  was seen originally would have been very little less extensive. Settlement was discounted to account for the possible success of this argument. *** 73

Coping with legal and clinical technicalities C sued DD Trust in negligence and under the ECHR, Article 2 for herself and her three children over the death by suicide of her husband H in prison, where DD Trust had been responsible for his care. Breach of duty was admitted, but causation and quantum were disputed, on the basis that C and H would not have resumed living together on release and H would not have supported the family. At the opening joint meeting, DD Trust explained changes in procedure put in place since H’s death, which were much appreciated, as were the answers to supplemental questions raised later. DD Trust had made a Part 36 offer of £75,000 well before the mediation and they first repeated this sum as of the mediation day, thus agreeing to meet all C’s costs since their earlier offer, including all C’s mediation costs. C argued for a sum well into six figures and the mediator sought to manage C’s hopes and expectations by warning that such an increase appeared unlikely to be offered. DD Trust said they would make one more offer that day, and moved to a higher fivefigure sum plus costs, warning that if not acceptable they would rely on what they felt was their very protective Part 36 offer. They declined to consider two different six figure sums proposed by C. The claim settled at DD Trust’s final offer. The latter case also illustrates how explanations of changed procedure can be of comfort to claimant families.

Deciding cases on liability and causation only Quite often the court may order a split trial, so that the issues of liability and causation are tried first, rather than a global trial of all issues including the amount of damages at one hearing. This may be because breach of duty and causation are being fiercely disputed and to try those issues separately to see if the claim is made out would save the costs and time of proving damages if the defendants defeat the claim in principle. Mediations may sometimes be convened in the run-up to a split trial, when the amount of damages claimed may still be unclear or not yet properly evidenced. Even so, experienced legal teams may try to put an estimated value on a claim and may be open to negotiating a settlement on a ‘broad brush’ basis if sufficient information is exchanged to enable this to be done.

Negligence claims: damages Once liability and causation are either agreed or conceded (whether formally or provisionally without prejudice), the amount of damages, or quantum, of a claim has to be assessed. In claims where the claimant establishes both breach of duty and damage caused by the breach, the only remedy that a judge can award is monetary damages (and legal costs, 74

Negligence claims: damages which are discussed separately in Chapter 9). Again this is a complex subject and only a simple outline can be given here. In common law jurisdictions, the objective of compensation is to put a claimant as far as possible into the position they would have been in if they had not suffered a negligently caused injury. Damages will be awarded under a series of different heads. Claims by a living claimant The main heads will be as follows. General damages • Pain, suffering and loss of amenity: these are conventional awards based on comparisons established over time and by reference to decided cases published in standard textbooks like Kemp & Kemp, and the Judicial College Guidelines to the Assessment of Damages, which is updated regularly; • interest is payable on these damages from the date that proceedings started. Past losses (or special damages) • loss of net past earnings attributable to the injury; •

past expenses, such as treatment, rehabilitation and prescription costs, travel expenses to treatment, care costs, whether professionally rendered and paid for or gratuitously rendered by close family (when a lower rate will be allowed), past DIY and gardening costs if these now have to be bought in;

•

interest is payable on past losses in respect of the period during which they have been unpaid.

Future losses • future net loss of earnings until recovery or retirement, or anticipated death, giving credit for existing future earnings – usually calculated by assessing an annual amount and multiplying by a factor relating to the years of loss anticipated (using special tables). Sometimes loss of future earnings cannot properly be calculated on such a precise basis, and a global figure may be awarded or agreed to compensate a claimant for future losses on the basis of a rough estimate. This method is usually referred to by the names of two cases in which this approach was approved: Smith v Manchester Corpn4 and Blamire v South Cumbria Health Authority5 (often referred to as awarding ‘a Smith’ or ‘applying Blamire’); 4 (1974) KIR1, (1974) 118 SJ 597. 5 [1993] PIQR Q1.

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Coping with legal and clinical technicalities •

future care costs, using a similar future years calculation on the annual cost;

• future treatment costs, which may be claimed on a private delivery basis rather than using the NHS; • future accommodation costs, where it is proved that existing accommodation is inadequate; • future extra transport costs, if any; • future gardening and DIY costs, if any. Awards for future losses are usually agreed on a lump sum basis, applying complex discounts because they are being received in advance. These discounts are calculated actuarially and published in what are called ‘the Ogden Tables’ (explained more fully below). In very substantial claims for future losses, the parties can agree that certain heads of claim (particularly care costs in cerebral palsy and brain damage cases) are made the subject of periodical payments, which will continue until actual death or earlier termination. Future inflation is compensated for in periodical payments by tying them to a named index, such as the Retail Prices Index or the Annual Survey of Hours and Earnings. Claims relating to a deceased patient Where the family is claiming in relation to death allegedly caused by clinical negligence, the following may be claimed under the Law Reform (Miscellaneous Provisions) Act 1934 and Administration of Justice Act 1982: • where the deceased did not die immediately after the negligent act or omission, damages for pain and suffering during that period; • funeral and some related expenses; •

(if the spouse or civil partner of the deceased, or the parents of a deceased minor – but not adult – child) a bereavement award of a sum fixed by statute: in 2018 this is currently fixed at £12,980.

Under the Fatal Accidents Acts Where close relatives of the deceased can show that they were dependent on the deceased (this includes cohabitees for at least two years prior to death), they can claim for the value of past and future dependency, which can include: • income dependency, where the deceased’s net income supported or contributed to the family income. With spouses/partners, this is normally calculated by aggregating their net incomes, whether earnings, pensions or investment income. To that total will be applied a percentage discount to reflect the fact that the 76

Negligence claims: damages deceased would have spent some income personally: for periods when there would have been dependent children at home or in education, it will be 75%, and when just the deceased and partner, 66%. From the net total will be deducted the survivor’s continuing income, if any; • services dependency, where the deceased provided services such as DIY, car maintenance, or care above normal that now need to be paid for or somehow delivered by others. Interim payments of damages Where the defendant has conceded breach of duty or causation, sometimes informally, or by admission in their pre-action Letter of Response, or in the pleaded Defence, which may have led to judgment being entered for damages to be assessed, the parties can agree or the court can be asked to order an interim payment of an amount on account of damages. This might be used by the claimant to pay for rehabilitative treatment or equipment to alleviate the impact of the negligent treatment. Mediators need to be clear whether any interim payments have been made and to ensure that any settlement figure takes them into account, Interest Interest may be claimed and awarded on past losses and on general damages, but not on future losses. Different rules apply for each, and legal teams will be familiar with calculating these. Tax All damages for personal injury and clinical negligence are tax free, so that loss of past and future earnings are calculated on a net basis (after notionally deducting whatever income tax and National Insurance would have been payable). Expert reports on damages Claims for loss of earnings, limited or lost employment prospects and care costs are often very substantial and very complex. Hence quite often claimants and defendants will obtain expert reports from accountants, employment and care experts to substantiate such losses. State benefits recoupment If State benefits have been paid to a claimant because of an injury inflicted as a result of clinical negligence, these have to be repaid to the Compensation Recovery Unit of the Department of Social Security (or 77

Coping with legal and clinical technicalities CRU) by the defendant when an interim or final payment of damages is made to the claimant. The defendant is entitled to deduct such sums out of damages of a similar nature paid to the claimant. So if the claimant is paid damages for care or mobility costs and has received care or mobility benefits, a deduction can be made, but only like for like. The defendants will obtain a certificate of recoverable benefits (or a nil certificate if no recoupment is required). The duty to repay only applies to benefits received up to five years from the event which triggered liability. Any settlement agreement needs to identify whether damages are gross or net of CRU recoupment.

Practical considerations for mediators on monetary claims Where the parties have not exchanged a schedule or counter-schedule of losses before a mediation, the mediator should encourage this, as these will almost certainly define the parameters for discussion. But it is very rare for detailed examination of individual heads of loss to dominate negotiations during a mediation. Each party will almost always resort to round numbers for making offers, leaving the offeree party to compare what is offered with their own calculations as to what they regard as appropriate under each head of claim and overall. Sometimes a party will ask the mediator to explain why an offer is as high or low or different as it may appear to be, giving details under various heads of damage, but more often the mediator is not informed about the breakdown of offers. A global figure can conceal differences of approach to the quantification of different heads, and make progress more likely. But essentially it is for each party and their legal advisers to take responsibility for the thinking behind the offers they make, consider, accept or reject. The mediator need not insist that parties descend into detail unless this seems to be the only way to break deadlock. Part 36 offers The rules and considerations governing these have already been outlined in Chapter 26. A Part 36 offer must be made in writing, must specify that it is made under Part 36, and must give at least 21 days for acceptance. It must also make clear how benefit recoupment has been dealt with, and it is assumed to be inclusive of any interest claim. Acceptance of a claimant’s or a defendant’s Part 36 offer automatically carried with it the right for the claimant to be paid standard basis costs. There will occasionally be cases where the claimant is perceived to face a risk that they will not win at all, but the defendant wants to do something to protect themselves from costs liability and yet to offer something which buys up the risk of losing. They may also want to offer non-monetary benefits as well as a cash sum. If so, they can make a non-Part 36 offer 6 See p 32 above.

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Negligence claims: damages – often called a Calderbank offer, after the name of the case where this approach was approved by the court – and the court may take into account the terms of such an offer in deciding costs liabilities at the end of a trial. This might, for instance, be used to make a global offer inclusive of the claimant’s legal costs, when the defendant thinks that the claimant’s legal advisers should themselves discount what they receive because of the risks of losing (especially where the claim is funded on a no-win-no-fee basis). Discounting There are three main reasons why figures discussed during a mediation may be discounted. These are considered in the following paragraphs. Valuation of future losses This was touched on above. Where compensation is payable for future losses in a lump sum now, it might seem right to ascertain the annual loss or cost and multiply it by the number of years during which it will be suffered, whether that is until retirement age for lost earnings, or for life for the cost of care. But the purpose of civil compensation is to put a successful claimant, so far as possible, in the same position as if the injury had not happened. If such a simple calculation were done, the claimant would be over-compensated, as interest and capital appreciation earned on the lump sum will be compounded and increase its value. On the other hand, inflation may steadily reduce the value of the sum over future years. There are other variables, such as life expectancy, which may or may not have been reduced by what went wrong, and there are risks other than mortality, such as redundancy from a job or new illness. So various adjustments have to be made to find the right figure. The multipliers and adjustments are to be found chiefly in what are called for convenience ‘the Ogden Tables’ (named after their original author/editor). In welldrawn schedules and counter-schedules of loss, each party will set out the multipliers, discounts and assumptions that they have taken from the Ogden Tables. Occasionally one party will challenge these in their response, but this is an area into which mediators very rarely have to go. Mediators may be asked to convey a challenge or re-calculation, but they will be equipped to do so by the challenger. Mediators need not feel that they must master things at this level of detail. Rather, the mediator has to work with the global numbers that these calculations generate, and more especially with the other types of discount, which is very important in every mediation. The calculations in the Ogden Tables are based on what is called the ‘discount rate’. This is a percentage figure set by order by the Lord Chancellor from time to time, which is related to the general level of interest rates in the money market. It is used to work out what lump sum needs to be paid today in order to provide enough in the damages fund to 79

Coping with legal and clinical technicalities last for the future period during which a loss will be sustained (this might be for projected working life for loss of earnings, or for the whole of life for care, unless reduced to allow for care that would have been required anyway regardless of negligently-caused loss). The assumed investment is in the safety of government gilt-edged stocks, which has a lower rate of return than equities. The lower the discount rate, the higher the lump sum equivalent will be. Following an unprecedented period of low interest rates, the current discount has recently been reduced to a minus quantity (-0.75%), which means that gilt-edged investment will not bring sufficient return to keep the value of a damages fund to the required level. Hence, damages for future losses have shot up. Damages funds are not usually invested in government gilt-edged stock, for the very reason that they produce a rather low return. Rather more risky investment policies are often adopted by those responsible for damages funds, whether the claimants themselves or trustees or managers appointed to the task. Meanwhile the basis for assessing the discount rate may change, and the rate itself may be adjusted upwards if interest rates start to rise. This one component of future loss calculations can have a very significant impact on how the sums are calculated. Where the discount rate may change within the foreseeable future, parties may suggest allowing for this when calculating future losses. The award of periodical payments instead is a way of circumventing the problem, as these will simply be paid at fixed rates, adjusted for the passage of time and other factors as agreed or ordered, and will last precisely as long as the claimant would have been at work (for earnings losses) or while still alive (for lifetime losses). But while the discount rate is actually a minus factor, and very large lump sum awards are available, periodical payments are likely to look less attractive. Loss of a chance Where it is asserted that a claimant has suffered the ‘loss of a chance’ in attaining some future monetary entitlement, a discount may be appropriate. For instance, if a claim is made for loss of earnings, the claimant may assert that the injury suffered has damaged their chance of promotion to a higher salary grade. The defendant may well seek to argue that the claimant only had a chance of that promotion and decline to pay the full value of the enhanced salary. It might therefore be argued that the claimant is only entitled to a percentage of the increased value attributable to the loss of promotion, discounted by an appropriate percentage based on the chance of its being attained or not. Taking account of the risk of not succeeding Slightly differently, discounting may be debated to allow for the risks of succeeding or not on a given issue, or even at all. All the above 80

Obstetrics and gynaecology claims figure work is based on the top value of what a claimant may hope to be awarded, or, for a defendant, the lowest sum. Each party will assert their best case whenever they can. But beneath their best case lies the risk that they may not achieve it at trial. ‘Case’ here connotes any component of their case. So a claimant or defendant may not succeed in winning their case on breach of duty, or causation, or on one or more of the many heads of damage claimed. The ‘settlement value’ of each party’s case may therefore arguably need to take into account the risk of not winning that part of their case. In a simple example, where a trial judge could only award either £100,000 or £0, parties might agree to settle at £60,000. The claimant team is in effect conceding a risk of 40% that they might lose altogether, and the defendant a 60% risk of failing to defeat the case. The claimant might say ‘I  decided to accept £60,000 because I feared that I would have lost completely four times out of ten at trial’, while the defendant might say ‘I agreed to pay £60,000, because I feared that I would have had to pay the full £100,000 six times out of ten at trial’. The same approach might apply to a discrete head of damage in a case where breach is established or conceded. It is certainly part of the mediator’s job to encourage all parties to be honest with themselves about the risks of failure, for unless they do, it will be very difficult to move them towards an agreed settlement figure. This topic is looked at again in Chapter 7 in relation to the practicalities in the bargaining phase of a mediation, and in Chapter 9, which looks at settlement in detail.

Obstetrics and gynaecology claims There is not enough space in this book to consider every clinical area likely to arise in mediations in all claims, but obstetrics and gynaecology deserves brief separate attention for several reasons. Firstly, as noted above, the baseline expectation as to their state of health for both mother and baby is normality, whereas almost all other interventions by clinicians are for patients who are in some sense ill. There will be mothers who approach childbirth with pre-existing health deficits or conditions which make childbirth more difficult and which will continue to impact on health, such as diabetes; or who develop conditions as a result of pregnancy, such as pre-eclampsia, the effect of which should dissipate after giving birth. But, on the whole, women giving birth are well and their children are born well. Birth is a positively anticipated event in most circumstances and is expected to have a happy outcome. When it does not, whether for mother, child, or both, and such hopes are dashed, the emotional reaction will usually be very strong. Things can go wrong in any birth, whatever the mother’s circumstances, and the demands of coping with what went wrong, coupled with the deep disappointment about which might have been calls for considerable strength. Very often a child with long-term birth damage is living next to healthy siblings in the same family, and the contrasts can be very painful for the family. If such feelings are channelled into making a claim which in effect seeks to identify and place blame on 81

Coping with legal and clinical technicalities healthcare professionals, they are likely to add a powerful dimension to the claim and the way it is best resolved. Birth trauma cases are by far the most expensive claims. In the NHSR Report for 2016–17, obstetrics claims represented 10% of reported claims, behind orthopaedic (13%) and casualty (12%) claims. Gynaecology claims were at 5%. But in terms of value of claim, obstetrics represented a colossal 50% of claims, with all other specialties below 10% each and gynaecological claims at 2%. Claims for cerebral palsy inflicted by oxygen deprivation during birth will attract many millions of pounds damages for the lifelong cost of care, mobility, equipment and housing and loss of earning capacity. The other main claim type (there are of course others) relates to so-called Erb’s palsy, when irreparable damage is caused to the brachial plexus nerve bundle when the child’s shoulder is stuck in the birth canal and requiring forcible delivery through an emergency manoeuvre, resulting in a range of lost power in that arm, sometimes a total loss of motor control (a ‘flail’ arm). These claims too attract damages in the many hundreds of thousands of pounds when made out. While damages are not payable for a stillborn child, and damages for the death of a new-born child are relatively low, mothers may seek damages for psychological harm caused by these events as primary or sometimes secondary victims. Fathers and other relatives may also occasionally claim as secondary victims in particularly horrifying circumstances which led to provable psychological damage. Mothers may themselves sustain damage during the birth process, some of which may be inevitable and not giving rise to a claim, but as to which negligence may be able to be proved. Such serious outcomes as incontinence or damage to the birth canal or rectal region can attract substantial sums. The fortunately rare death of a mother in childbirth may also give rise to very substantial damages claims if negligence is proved. Claims for cerebral palsy are complicated to prove. They require very close examination of any foetal monitoring prior to the birth, and interpretation of the cardiotocograph (CTG) readings and other signs of distress in the unborn child, to assess whether vital indications necessitating emergency intervention, perhaps by caesarean section, were missed. Many children with cerebral palsy do not have legal capacity and therefore the limitation period of three years never starts. It takes a long time to assess what deficits need to be compensated for in such children, so claims will often run for more than ten years, even if breach of duty and causation are admitted. Like all claims involving claimants without legal capacity, such claims require court approval before being binding. In the light of all these factors, mediation clearly has a place in the resolution of such claims, so long as it is sensitively handled. With its usefulness in accommodating the emotional dimension within the process, it ought arguably to be the process of choice. Historically mediation has not been utilised often in such cases, but its use has recently been growing. There 82

Claims under the Human Rights Act and the ECHR is certainly no inherent reason why mediation should be unsuitable for dealing with cerebral palsy and Erb’s palsy claims: perhaps quite the reverse.

Claims under the Human Rights Act and the ECHR The NHS, as a public body, is subject to the provisions of the ECHR, and occasionally claims will be brought under this legislation, usually in connection with claims for negligence. One of the main reasons for this is that it may give rise to claims which cannot be brought in negligence, especially as regards the death of an adult child. For a parent to succeed in a claim under the Law Reform (Miscellaneous Provisions) Act 1934, which usually is for a conventional sum for bereavement (currently £12,980, and varied by Order in Council periodically) plus allowable funeral expenses and any damages for the deceased’s pain and suffering between negligence and death, the child must be a minor. However a ‘victim’ of a breach of an obligation under any article of the ECHR may claim, and this includes the parents of an adult child whose rights were infringed. This is not to say that every act of what the case law rather unkindly call ‘casual’ negligence also gives rise to an arguable claim under the ECHR. The main ECHR article relied upon in clinical cases is Article 2, which provides that ‘everyone’s right to life shall be protected by law’. This has been interpreted through European case law as imposing various duties on organs of state (which will include the NHS): • a duty not to take the life of citizens other than in exceptional defined circumstances; • a positive duty to investigate deaths for which the state might be responsible (broadly met in the UK by coroner’s inquests); • a positive duty to protect life: the relevant part of this is called the ‘operational duty’, under which the state might be held liable where an organ of the state failed to take measures within their powers that might have avoided a real and immediate risk to the life of an identified individual about which they knew or ought to have known. This had been broadly restricted to compulsorily detained mental patients, military conscripts (not relevant in the UK) and prisoners, all of whom are clearly under the control of the state. The required protection is from criminal acts by fellow inmates and also includes suicide prevention and failure to arrange prompt medical attention, whether as clinical care or by an ambulance service. The Supreme Court case of Rabone v Pennine Care NHS  Trust7 extended protection to a voluntary patient who committed suicide after negligently being allowed out on home leave. Her parents were found to be ‘victims’ entitled to sue, and damages of £5,000 each were 7 [2012] UKSC 2.

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Coping with legal and clinical technicalities awarded. The category of victim is effectively limited to blood relatives who were directly affected by what happened. So damages are modest, but the legal costs of proving or resisting entitlement to them will be huge, often involving difficult matters of new law. Defendants may argue that to settle a negligence claim without settling any ECHR claim will deprive the claimants of victim status. This is unlikely to be effective if the settled claim covered different types of damage, as was the case in Rabone, where English law did not give a remedy to the adult deceased’s parents. ECHR claims should strictly be brought within one year of the right to claim accruing, although the court may extend that time limit. ECHR claims might also be framed as breaches of Article 3 (prohibiting torture, inhuman or degrading treatment or punishment), or Article  8 (the right to private life). Although occasional claims have been made on the basis that a hospital’s care was so poor that it amounted to a breach of Article 3, it is highly unlikely that a judge would be enthusiastic to pillory the NHS in this way, as breach requires a ‘minimum level of severity’, and thus the burden and standard of proof to establish such a breach is rightly regarded as being very high. Article 8 rights might be infringed by a medical examination against the will of a patient, though such a claim would also be brought in assault or as negligence in failing to obtain informed consent, which might vitiate a separate ECHR Article 8 claim. Failure to supply relevant information which might impact on health has been held to be a breach, as has removal from one state to another resulting in a probable possibly fatal damage to health. The right to choose to end your life is also protected by Article 8, but every state is allowed a wide ‘margin of appreciation’ in the way it legislates to deal with such matters and if domestic law protections are found to be adequate, the European Court of Human Rights may refuse to intervene.

Expert medical opinions The range of possible expert medical reports is infinite, so only a few points of guidance will be made here, and the topic is revisited from a slightly different viewpoint in Chapter 6. Expert witnesses are vital in most clinical claims, as they have to provide the basis for showing whether or not the Bolam test is met in any given set of circumstances. They will be instructed by one or other party who will hope that their opinion is supportive of their case. However, CPR Part 35 makes it clear that experts owe a duty to the court to give fair and balanced evidence, and not primarily to the party who instructed them. This formulation was introduced by the CPR to try to break the ‘hired expert’ concept that dominated personal injury litigation for many years. 84

Expert medical opinions It would still be surprising to find a party disclosing an expert report which was adverse to their case. The times when expert opinion is tested out are: (i) when opposing experts meet or (more often) have a telephone conversation convened under CPR Part 35 in order to narrow the issues and define where they agree and disagree; and (ii) at trial, under crossexamination. Medical experts have hitherto rarely attended mediations in the UK. Their reports are included in the mediation bundle and should be read by the mediator beforehand. Sometimes a party may arrange for their expert to be available at the end of a telephone to answer any points that arise. The mediator might enquire whether this facility has been put in place, or even suggest it in advance. Occasionally experts as to quantum may attend. In the following example, the care experts attended. In the event they did not meet jointly, but advised separately and adjusted their view in the light of the mediator’s private questioning: C sued DD Trust for negligence alleged in performing a total knee replacement which resulted in three further operations and finally arthrodesis of the knee and immobilisation in a wheelchair. Quantum was at issue, especially over the care claim. An earlier five-figure interim payment had been used for a further operation. A mediation was convened several months before trial. Each party’s care expert attended the mediation, in view of their differences, and the mediator conducted discussions with each expert in private meetings with their team, testing out their differing views. This closed the gap between them before bidding started, although they did not actually meet. Opening bids were either side of the final settlement figure of £200,000 plus the prior interim payment and a written apology. Getting to grips with a clinical report may require some research into technical and anatomical terms and abbreviations. Quite often the best place to start reading is the ‘summary and opinion’ section towards the end of the report, then working back to see how any significant conclusion is reached. Mediators may also find it helpful to prepare their own chronology, especially in a claim where the claimant was seen by a variety of clinicians over a period of time, with multiple admissions and discharges as an in-patient. It is often more important to appreciate the factual ebb and flow than the medical detail of treatment. CPR Part 35 requires experts to meet and discuss their views before trial, in order to narrow the differences between them and clearly identify where they agree and disagree on material issues. Such meetings (actually often conducted over the telephone, with one expert drafting the joint report for the other to approve) usually occur only within the final six months before trial. Such joint reports, when available, are just as useful for the mediator as they will be for the judge. 85

Coping with legal and clinical technicalities However, at all times when grappling with medical technicality, mediators need to remember that this is being done to enable them to facilitate discussion, in which they will not be expected to make any rulings or form a view on the merits. They need to develop a degree of comfort with the vocabulary of a given case, and a broad understanding of what the issues are. But it is the parties and their legal teams who should already understand the details and intricacies of a case, and thus be able to appraise the strengths and weaknesses underlying each opinion. The mediator is there to ensure that well-informed discussion between the teams is possible and constructive. As has been said repeatedly, inter-personal and process management skills are far more important than technical legal or medical knowledge. Being able to ensure that discussions are conducted in a way, and in language that is intelligible to the lay claimant, is vital, and a mediator with less than encyclopaedic knowledge of medicine is probably best placed to ensure that this happens.

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Chapter 5

Choices over clinical mediations: whether to mediate, when, where, and with which mediator?

Whether to mediate a clinical claim? As noted in the introduction to this book, a remark often made by academics and judges is that ‘mediation is not a panacea’, asserting that there are cases which are not suitable for mediation, sometimes appending a list of cases which are said to be self-evidently unsuitable. The correctness of that statement must depend essentially on the definition of ‘panacea’, Greek for a ‘cure-all’, or universal remedy, and it is worth studying its implications a little more closely. If ‘panacea’ connotes taking a medicine (or in civil justice terms, engaging in a process) which delivers a certain outcome and makes everyone who takes it (or participates in it) feel inherently better or cured, it is hard to see whether anything can fairly be described as a panacea, even – and perhaps especially – a civil trial. Certainty is achieved, of course (subject to any right of appeal), but at least one party does not usually feel better or cured. Nor, in the event of a Pyrrhic victory, do any of the parties. It is often suggested that mediation is inappropriate in cases where a precedent is needed. A  case which goes to trial may indeed serve the common law’s need for precedent for the better development of the common law (relatively rare in the well-ploughed field of clinical negligence), but that was almost never one of the stated objectives of the parties, certainly not claimants, in embarking on this litigation. Unfortunately, the fact is that roughly 50% of all cases litigated to trial are lost by one party, who is unlikely to feel that the judge or the civil justice system has administered curative medicine. The legal effects of Halsey v Milton Keynes NHS Trust1 are discussed in further detail in Chapter 3, but one has only to look at the facts concerning the unfortunate Mrs Halsey in that case to see how unintended and unwelcome problems can arise out of litigation. Her husband had died following surgery at the defendant hospital. Consequently, all she wanted was to call her local hospital to account over her late husband’s death. She had no interest in establishing a precedent about mediation and costs 1 [2005] EWCA Civ 576.

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Choices over clinical mediations sanctions. She did not expect to end up in the Court of Appeal with leading counsel arguing about something entirely different, landing her with a huge costs bill and a charging order on her house. It is worth looking at the reasons given by the defendant Trust for not agreeing to mediate. They, or their solicitors, put it in this way: ‘As there is no negligence, the Trust will not be settling this claim. In view of this I do not believe it is appropriate to meet with you and discuss this claim or refer this case to mediation as the Trust’s stance will not change in this respect. Therefore any such meeting or mediation will be unnecessary waste of both costs and resources’. And later: ‘I have as yet been provided with no evidence that it would be an effective use of NHS resources to go to mediation on this small value claim, where liability is in dispute’. And shortly before trial: ‘In respect of your request that we clarify why “mediation is not a cost-effective use of NHS resources on such a low cost claim”, (a) it has little chance of success and (b) the costs of mediation would be as great if not greater for such a low value claim than attending trial.’ To be fair, NHS Resolution (NHSR) would almost certainly take a different stance now. The first point to note is that Mrs Halsey’s case could rightly be characterised as a low value/high emotion claim. Such cases, especially involving a fatality, were the paradigm of cases identified as suitable for the NHS Mediation Pilot in 2014. Secondly, NHSR regards it as a suitable use of mediation to explain why liability is at issue and why, at least at the outset, they do not intend to pay any damages. Thirdly (and assuming some value in the previous point), any risk of a costs sanction could have been averted in Halsey very simply, by convening a mediation with the Trust represented by a claims manager or in-house legal representative (rather than a lawyer) at little expense. The Trust could then have been able to listen to what she had to say, giving her an opportunity to tell the Trust how she felt, and then to explain to Mrs Halsey directly and personally why they were taking the stance they did. Mrs Halsey would have been able to give vent to her strong feelings while being able to note that the Trust had heard her. The Trust would have been able to check that there was not some argument that might persuade them to change their minds before too many costs were expended, and above all they could have reassured Mrs Halsey that she would still get the best care possible from the NHS in general and her local Trust whenever she might need it. All of these were, and remain, entirely legitimate reasons 88

Whether to mediate a clinical claim? for convening a mediation, even when liability is denied, and it will not cost as much as a defended trial. It might even avoid one. The Trust went on to claim that mediation would have ‘little chance of success’. Success needs careful and cautious definition. It does not mean the same as ‘settlement’. Indeed it would be very worrying if every mediation inevitably led to settlement, giving rise to allegations that parties were being strong-armed into settlements against their interests by mediators. It is strongly arguable that delivering the additional opportunities for discussion outlined in the previous paragraph can be viewed as hallmarks for the ‘success’ of a mediation. When deciding whether to mediate, they should be considered as much as whether full and final settlement will definitely be reached. The truth is that, looking at Mrs Halsey’s situation in retrospect, there should have been a mediation and it was wrong for the defendant Trust to refuse to mediate in her case. Sadly the Court of Appeal’s decision arguably set the regular use of mediation to resolve clinical negligence claims back by ten years. So how does mediation (as a medication to treat legal ills) compare with litigated trial as a ‘panacea’? True, mediation does not produce a definite result, in that no one is ever obliged to settle. Yet its use does not in any way obstruct a further dose of litigation if a mediated cure cannot be agreed, and the certainty derived from an imposed judgment turns out to be the preferred course of treatment. However, a mutually agreed cure is a very regular feature of mediation, with high settlement rates in clinical claims, as evidenced by the NHSR’s report in 2016–17 and the experience of mediators administering such treatments. Furthermore, mediation attends to emotional disturbances which almost always underlie every party’s state of health when in dispute in a way that it would be hard to claim is done at a litigated trial. A  mediated settlement may deprive the common law of a precedent, but not by being an alternative form of adjudication, nor by preventing parties from electing to go to court to get a precedent if that is where they perceive that their interests best lie. The civil justice system’s proper target for that kind of complaint is arbitration. Civil justice is elective and parties extremely rarely go into it to establish precedent. No one can be compelled to litigate in order to advance the common law, and no sensible person will finance such litigation for that public-spirited purpose alone. In any event, the fact that the law is uncertain or that one side desires to set a precedent does not mean guaranteed success on that argument. If there is a risk that the judge might set the precedent on an unfavourable basis, it might be wise to consider evaluating and buying up that risk instead of going to court and suffering the consequences of an adverse decision. As a vivid example of this, Chapter 8 gives an account of the retained organs litigation. The law was entirely uncertain on whether doctors 89

Choices over clinical mediations could retain pathological specimens from deceased child patients without parental permission. The contrast between the value of the mediated outcome for the Alder Hey Group Litigation as compared with the National Organ Group Litigation, which did go to trial and produced a classically Pyrrhic victory for some and a disastrous loss for others, is stark in scale, and none involved in that case are likely to describe it as representing a panacea. Medical metaphors aside, are there clinical cases which are inherently never suitable for mediation at some stage in their life cycle? This book would argue firmly that there is no such case, because of the range of needs and issues that are capable of being discussed and resolved through any mediation process. There have now been many settlements through mediations of clinical claims involving fiercely disputed issues of breach of duty and causation; where damages claimed have been a few thousands (even when the legal costs claimed were into six figures for each party) or for many millions; where experts appeared to take diametrically opposing views; where feelings of anger were intensely felt and expressed; where the facts were already in the public domain; where lawyers for each party did not trust each other; where there were multiple claimants and multiple defendants separately represented and warring with each other. Judges have also occasionally forgiven parties for declining to mediate, on the basis that they were ‘far too far apart’ to make the exercise worthwhile. Experienced mediators are used to seeing huge shifts from starting to finishing positions, and are constantly surprised at how far people are prepared to move because they see a self-determined settlement as being preferable to an uncertain adjudicated outcome. They will see what they chose as just or, to use Sir Gavin Lightman’s famous phrase, re-used by Lord Briggs recently, ‘an approximation of justice’, certainly an agreement negotiated in the shadow of the court, taking cognisance of the risks of not getting everything your pleaded case had aspired to achieve. Why and how far parties find themselves persuaded to move when considering settlement is looked at in detail in Chapter 9. So mediation gives parties the opportunity to have conversations at a human level, and to acknowledge where misjudgement has occurred and to apologise for it. They can express the feelings that inevitably underlie claiming and being claimed against, and explain what happened and how practice has changed as a result in a way that memorialises and gives some comfort for the pain suffered by patients and health care staff. Those who have complained and claimed can be reassured that they are still welcome to seek care from the NHS whenever they may need it in the future. At the same time an opportunity is given to the parties to explore whether compensation is capable of agreement. All these features of a typical mediation arguably promote the mediation process as no less of a panacea than other processes, in a world where we all know that no such thing really exists. 90

New areas in which to consider mediation: fundamental treatment choices

New areas in which to consider mediation: fundamental treatment choices and early stage catastrophic claims Before examining questions about setting up mediation processes in relation to complaints and claims about alleged clinical negligence, there is one area in which mediation has a proper place that is entirely outside that more familiar milieu. Mediation is beginning to be used in bioethical disputes, particularly in the extremely emotional and difficult area of treatment choice. This is not necessarily ‘pre-litigation’. Litigation may be invoked either by NHS bodies applying to the court for orders permitting the withholding of treatment, or by families seeking judicial review of what they regard as a wrong clinical decision. Such cases often involve life-or-death decisions about extremely ill children or adults where continuing treatment is felt by clinicians to be unlikely to do more than prolong suffering when healthcare professionals at least take the view that there is no hope of recovery. Parents and families inevitably take the opposite view, and are very reluctant to admit that nothing more can be done for a beloved child or relative. When a hospital that has accepted the enormous responsibility for caring for a grievously ill child then takes a decision to apply to the court for an order permitting the withholding of treatment or nourishment as being in the child’s best interests, it is hardly surprising that families should fight such a decision with every ounce of their strength and determination. Trust quickly goes out of the window, as do open communication and willingness to listen, to be replaced by the distancing effects of bitterness, anger and frustration, compounded by the distancing effect of litigation. Supporters of families in such tragic circumstances have often vented fury on hospital staff in a way that has bewildered them. Hospitals have successfully applied for staff to be granted anonymity in dealing with such cases, because of management fears that staff will be subjected to public vilification. This use of mediation came into prominence in 2017 in the Charlie Gard case, where Great Ormond Street sought permission to allow him to die. Similar issues arose in the earlier case of Charlotte Wyatt, born three months prematurely in 2005, when the hospital which had treated her multiple severe health problems since birth sought permission not to resuscitate her in the event of a crisis. Her parents objected and the case was heard in open court. Sadly her parents split up, despite Charlotte’s entirely unexpected survival which enabled her to be placed with foster parents and come out of hospital. Another claim has also been settled by the family of a woman who had expressed her wish not be resuscitated, but who was kept alive for 22 months because the hospital lost reference to her living will. Bioethical cases present in a variety of ways. They may be about adults or children, each case involving a patient with apparently irreversible conditions, and involving life-or-death decisions. These cases need sensitive handling, with care being taken to ensure the best possible communication between those personally and professionally agonised by 91

Choices over clinical mediations such events. An independent neutral who can design a process to suit the feelings and positions of those involved in such difficult cases and dilemmas, who can consult privately with each team and help to make possible and manage difficult communications in any meetings involving all concerned is perfectly suited to help people find a way through such situations. If mediation can be deployed before litigation is commenced, so much the better. Francis J  summarised the position well in one of the Family Division hearings concerning Charlie Gard2 when he said: ‘I  want to mention, again, the subject of mediation. Almost all family proceedings are now subject to compulsory court-led dispute resolution hearings. This applies in disputed money cases, private law children cases and in all cases involving the welfare of children who might be the subject of care proceedings. I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee’. Mediation was not deployed in the Gard case in the end, but it has been used since then in similarly difficult life-or-death cases involving children, with the Family Division judge firmly endorsing its use. This is a demanding type of mediation. Mediators capable of dealing with such highly-charged cases, normally heard in the Family Division or the Court of Protection, are beginning to emerge, with skills having been developed in dealing with perhaps marginally less contentious and difficult contexts without the shadow of litigation looming, for example such as the Evelina Children’s Hospital mediation project, helping clinicians and families to communicate effectively over difficult treatment choices. While a complete settlement will be difficult to achieve in life-ordeath cases, greater understanding of each other’s position is attainable and agreements over further interim tests and treatment options before a final outcome is chosen can be negotiated. Even where there have been previous clinical ethics group or ‘best interests’ meetings involving the Trust and the family, the introduction of a neutral chair alters the dynamic, reducing the risk of perceived procedural unfairness, relieving each team from the responsibility of running the process as well as advocating its 2 Great Ormond Street NHS Trust v Yates and Gard [2017] EWHC 1909 (Fam).

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When should mediation be tried? own position, and generating an element of objectivity to the process which is hard to achieve if a meeting is convened on hospital premises and chaired by a Chief Executive or Clinical Director. Such mediations are best convened on neutral territory, such as at a convenient hotel. Use of mediation in these virtually unresolvable cases underlines the fact that mediation is not “just about settlement”. It is also about making it possible for those in dispute to have a really important conversation under the best possible circumstances, with the process managed neutrally to eliminate so far as possible any power imbalance or reluctance to communicate in circumstances where honest and clear communication is absolutely vital. With the proposals relating to Rapid Redress and Resolution in relation to serious birth trauma, the question arises as to how best to open and maintain effective communication between healthcare providers and families where it appears that a new-born child may have to face serious developmental deficits, perhaps as a result of oxygen deprivation during birth which may or may not give rise to an extremely substantial claim if breach of duty is proved. One possibility which might be explored is the appointment (by agreement between the family and Trust involved) of a mediator who can be brought in to facilitate difficult discussions as required when direct communication between family and Trust may have broken down or be particularly difficult. This has not been piloted yet, but may prove worthwhile.

When should mediation be tried? Chapter 3 sets out the main pressures to mediate which are generated by the provisions of English civil procedure. Firstly, before issue of proceedings, once obligations for disclosure of each side’s case under the Clinical Negligence Pre-action Protocol (PAP) have been met, the PAP requires the parties to consider alternative dispute resolution, and to perform a stocktake. Once a claim is issued at court, the standard Fontaine direction requires parties to consider ADR ‘at all times’ during the life of the claim. Ignoring either of these obligations may attract a costs sanction. In practice, while there has been a steady increase in the number of clinical mediations before issue of proceedings, the large majority still take place very late in the life of issued claims, often within three months of a trial, which is not fixed until many years after the events to be discussed. Could (or should) cases mediated so late, and which have taken so much time and cost to reach that stage, have been mediated earlier? The usual explanation for late mediation is that it is not until that stage of a case that all the material is in place for each side to appraise its risks and to assess the right settlement value accurately. No claimant lawyer wants to be accused later of advising settlement at an under-value, any more than a defendant lawyer wants to advise an institutional client to 93

Choices over clinical mediations over-settle a claim. Late settlement may be impossible to avoid in some complex cases, but even in those cases, earlier discussions managed by a neutral within the confidentiality of the mediation process can be of benefit in narrowing issues and clarifying the route forward. Once that has been done during the mediation, settlement can suddenly open up. The case below was mediated just before issue of proceedings and illustrates how the convening of a mediation in a claim with a difficult causation issue can bring matters to a head. It can clarify them in a way that extinguishes the need for protracted litigation debate, and provides acceptable compensation to the claimant at a level which accommodates the risks faced by both claimant and defendant. C  had to have a revision of a replacement hip. One of the risks consented to was that a fracture of the pelvis might occur. In fact an acetabular fracture did occur during the revision but it was not noticed at the time or on two subsequent X-rays until a month after the operation. Until two days before the mediation, there had been no issue on breach or really on causation, just a quantum dispute which nearly settled through direct negotiation. Then a senior lawyer for DD Trust reviewed the case: although DD Trust had admitted failure to spot the fracture, it was now argued that C’s myocardial infarct three days later had broken the chain of causation by preventing the necessary corrective procedure, so that attributable loss would have been trivial. C’s lawyer argued that as this was a foreseeable complication, the means to correct it should have been in the operating theatre, but this was disputed. The mediation nearly foundered, when C would have had to get proceedings quickly and expensively settled and pay a £10,000 fee on issue of the claim form, as the extended limitation was close to expiry. However, settlement emerged at a substantial figure acceptable to both teams which took into account the possibility of a finding that a better outcome might have been produced if the fracture had not been missed, even if the necessary repair kit was unavailable, with both sides allowing for the risk of not establishing their best case. It is, therefore, worth considering whether cases might be amenable to useful mediation earlier in their life cycle, subject to one obvious and overriding consideration. The suggestions below are all made without reference to cost, which is bound to be the subject of forceful comment in relation to a cash-strapped NHS. All that can really be said at this stage is to refer the reader to the cost of claims as currently experienced by the NHS. Anything that can bring resolution of disputes between patients and the NHS earlier is bound to save money. That would appear to be the basis on which NHSR has promulgated its permanent mediation scheme. It is surely worth exploring other ways of bringing resolution sooner, so as to reduce the pain, time and cost for all involved in healthcare mishaps. It is suggested that there are two obvious stages, the first applying to any potential claim and the second related only to fatal claims. 94

When should mediation be tried? Complaints processes and serious incidents investigations Sadly the NHS has worked its way through frequent iterations of its complaints processes, and maybe has still to find the right way to deal with patient concerns. This is a painful area for all involved. In Disputing Doctors3, Professor Linda Mulcahy reviewed the complaints landscape with a degree of disappointment at the state of the complaints system introduced as a result of the 1996 Wilson Report. She discusses several studies that found high levels of dissatisfaction. Of complainants, she writes: ‘The DoH’s official evaluation of the complaints procedure introduced in 1996 shows, for instance, that the poor attitudes of staff, a lack of respect and inadequate explanations made a considerable contribution to the fact that two-thirds of complainants they contacted were dissatisfied with the handling of complaints and three-quarters found the process stressful and distressing’. She goes on to say: ‘It is clear that complainants experience strong emotional reactions to the circumstances leading to complaints and the processing of them’. But this is true of healthcare professionals as well. Her research into doctors’ responses to complaints showed that: ‘Emotional responses varied according to the facts of the case … interestingly the emotions they described reflected the type of haunting described by complainants … Despite their feelings of vulnerability, many doctors made strong counter-allegations against complaints and described their desire for redress’. She later suggests that this kind of polarisation reflects the English litigation norm: ‘Successive studies have shown that a natural reaction to being called to account is to provide a defence. But tragically for complainants defences are framed in ways which undermine the validity of the very act of complaining. This is particularly the case in Anglo-American inspired models of justice where adversariality is positively encouraged’. Despite the existence of these unresolved strong feelings on both sides of the complaints divide under the Wilson system, Mulcahy discovered, 3 L Mulcahy, Disputing Doctors: the Socio-legal Dynamics of Complaints about Medical Care (Open University Press, 2003).

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Choices over clinical mediations in research she conducted for the Public Law Project, that when complaints were referred to an Independent Review Board, the norm was for the Board to interview separately first the complainant and then the healthcare professionals and pronounce their judgment without ever convening a meeting of both sides. Unsurprisingly, this too raised levels of dissatisfaction among complainants, who wanted a conversation, if not a confrontation, with the relevant staff but were denied it both first time round and on appeal. There were also suspicions of lack of neutrality. The DoH evaluation found that the IRB process: ‘is not perceived by complainants to be impartial. Improving this aspect of the current procedure is the single most commonly cited suggestion for reform’. Mulcahy ends her 2003 book with a chapter entitled ‘A New Hope’, hopeful that further reforms being contemplated would make a difference. There had been a comprehensive review called Making Things Right published in 2001, and the Commission for Healthcare Audit and Inspection (later named the Healthcare Commission) was to offer a second stage review of local complaints which remained unresolved, with power to refer back for further local resolution, part of which was to be a mediation scheme, but also with the power to investigate and review the complaint itself or refer it on to the Health Service Ombudsman. At that time too, the consultation about the redress system was under way – which led to the NHS Redress Act 2006 – initiated by then Chief Medical Officer Sir Liam Donaldson. That included renewed debate on the question of no-fault compensation. Perhaps it was indeed a time of hope; Mulcahy even seems to have placed hope in establishing a no-fault regime, despite this being the avowed preference of the medical profession. Alas, how swiftly did that hope dissipate. The Healthcare Commission soon lost its role in reviewing complaints, its review processes having proved to be as bureaucratic and redolent with delay as any previous complaints process. Nothing fills the gap now between local resolution and the Ombudsman. So far as England is concerned, the NHS Redress Act 2006 remains gathering dust on the shelves of Parliament and the DoH, although honourably introduced in modified form in Wales. And there have been at least two more attempts at devising complaints systems to deal with the same old strong feelings. Now, when a mediator encounters a claim (which would usually have started out as a complaint, perhaps five years earlier) for the first time, shortly before trial and towards the end of the litigation process, it emerges that both the complaints process and even the Ombudsman’s intervention were unsatisfactory and slow, calling as much for apology for delay as the clinical mishap which started things off. At this shockingly late stage, mediators repeatedly hear the phrase ‘if only this had been handled properly in the first place, we would not have been here’, and those remarks come as much from the doctors called in to sort out the situation as from claimants. 96

When should mediation be tried? Is there a better way? The primary internal service provided by the NHS to assist patients with concerns is the Patients Advisory and Liaison Service (PALS). Its purpose is typically described thus on websites: ‘The Patient Advice and Liaison Service, known as PALS, has been introduced to ensure that the NHS listens to patients, their relatives, carers and friends, and answers their questions and resolves their concerns as quickly as possible. PALS also helps the NHS to improve services by listening to what matters to patients and their loved ones and making changes, when appropriate’. Each PALS is firmly based in the buildings of the NHS  Trust where it works. Despite the best efforts it may put into sitting beside the patient, and looking after patient interests, will PALS be perceived as truly neutral of the NHS or the relevant Trust in the final analysis? Is PALS provision uniform country-wide or patchy? Is the current offering of complaints resolution likely to be satisfying? A  salutary view of this is to be found in a videoed interview of a patient who found the whole complaints and claims process deeply unsatisfactory – her word was ‘grotesque’ – called ‘Christine’s Story’. Her experience involved a chaotic meeting with the consultant and nurse concerned, run by a complaints manager on the premises of the hospital that she was complaining about, and with no element of neutrality discernible. Surely it would make sense, when a serious complaint is identified, to convene a process on neutral territory, managed by a mediator who is perceived to be neutral by both complainant and clinical staff, to allow the strong feelings of those involved to be recognised and accommodated, and ways forward to be discussed. The NHS complaints system seems to have been dominated by investigation and fact-finding, based on the assumption that a pronouncement of what did and did not happen will suffice, satisfying patients and providing the basis for the NHS to learn from the findings and if necessary justify discipline for the staff involved. To a mediator, that does not seem like a recipe for sound resolution. Of course lessons must be learned, and claimants hugely appreciate being shown that this has indeed happened. It is perhaps the outcome they most value from mediations. But it could be argued that they value such responses because they are delivered to them within a process that is perceived to be run by an independent person, and on the basis that best makes it possible for parties to be frank with each other, and to see if an agreed way forward can be found. It is not only the making of a complaint by or on behalf of a patient that may trigger action by an NHS body. A Serious Incident (SI) review may be initiated by the NHS body itself under a process designed by NHS England. A  meeting will be convened of a Serious Incident Management Group, involving consultants from the department(s) concerned, the managers responsible for patient safety and risk, and with a representative from 97

Choices over clinical mediations the Patient Liaison and Advisory Service there to look after the patient’s perspective. The patient or family are not present at this meeting. A decision is then made as to whether an incident should be classified as a Serious Incident. If it is, the family, the Clinical Commissioning Group for the relevant trust and any other relevant interested bodies are immediately notified. The normal time limit for delivery of an SI review is 60 working days, which can be extended for difficult and complex investigations. Once concluded, PALS will usually offer to convene a meeting between the family and the relevant senior clinicians. Typically this will be on Trust premises, and the meetings may well be chaired by a PALS manager. The family or patient will attend, usually unrepresented except in the sense that a PALS representative is there too. Again, there is a risk that such a process is perceived not to be neutral, even if such a meeting is chaired by a PALS manager, who may inevitably be seen as the face of the NHS. Can the organisation responsible for chairing such a meeting also be seen as representing the interests of the patient or family? This is surely less than ideal. Arguably a chair entirely independent of the Trust might avoid such a difficulty, giving objectivity to the working out of the implications of the SI findings before any commitment to a claims process. Of course serious claims could never be settled at such a meeting convened at such an early stage, especially if compensation is sought. But the relationship between Trust and patient might emerge better adjusted at a much earlier stage than a mediation four or five years later, and in those cases where nonmonetary benefits might prove adequately satisfying, a proportion of cases would go no further. There is, of course, now a duty of candour imposed upon healthcare professionals, requiring openness about what has gone wrong. Bearing in mind too that the Compensation Act 2006 specifically provides that to say sorry cannot be used as an admission of liability, there are plenty of obligations and incentives for constructive conversation between patients and clinicians when something seems to have gone wrong. After (or before) an inquest An inquest is held following a violent or unnatural death, where the cause of the death is unknown, or the deceased died in state custody or detention. There may be, or may have been, an SI review as well. The inquest takes place in the region where the death occurred and is presided over by a Coroner, and in some instances a jury. The Coroner controls how the inquiry is conducted (subject to the Coroners Rules) and while any ‘interested persons’ can make submissions on the form of the inquest hearing, including on such issues as to which witnesses to call and what evidence to seek, these decisions are at the coroner’s discretion. An inquest is opened shortly after the death occurs and can take up to a year for the hearing or several years in more complex cases. 98

When should mediation be tried? Legal Aid for families to be legally represented at inquests is granted sparingly, normally only where someone has died in state custody or detention, where the European Convention on Human Rights (ECHR), Article 2 (the right to life) is engaged. This may arise where someone dies in prison (where usually an NHS Trust, or sometimes another contracted external provider has responsibility for care rather than internal prison medical services), or police custody or while in hospital sectioned under the Mental Health Act 1983 or as a voluntary in-patient in a mental health ward. However, the coroner can rule that Article  2 is engaged in cases where a death occurred in the community, if it can be shown that there was a degree of state involvement. There will be many cases where legal aid cannot be obtained for representation at an inquest, for instance because rights under Article 2 do not arise, or the family do not meet the means eligibility requirements; and even when a degree of neglect is made out, no claim may be effectively possible. Mediation might well merit consideration soon after the inquest in these instances, and also in Article  2 inquests where the family is represented. Even though the coroner investigates the circumstances of death, there may well be questions that do not arise during the inquest which remain important to the family, who will appreciate a further occasion when they can raise these with relevant clinical staff and seek answers, which perhaps are more likely to be given in a confidential environment. The remit of an inquest is often quite narrow, especially in a non-Article 2 inquest. In shorter inquests, the coroner will simply answer four questions: who the deceased was; where they died; when they died; and how the death occurred. In an Article  2 inquest the circumstances of the death are also explored, thus extending the remit of the inquiry. However, even in these longer cases it is unusual for the coroner to agree to include historical events or issues that the coroner deems outside the scope of the specific circumstances of the death, even when they may be of importance to the family. These might include any concerns the family may have in relation to how they or the deceased’s body were treated after the death occurred. Consequently the family are often left with questions unanswered. There may be cases where a mediation might pre-date a planned inquest. Families often say that their sole intention is to ensure that a similar death does not happen again and that all they wanted was an apology and acknowledgement of any mistakes or failings that may have taken place. If the family gets the answers they seek, they might consider not pursing a full inquest to the same extent. A mediation before an inquest might be considered as an early intervention to attempt to limit the confrontational and defensive approach that can be adopted by both sides during the inquest hearing. This could lead to a more productive inquest hearing and could expedite the civil claim process (where there is one). Also an early mediation might be considered in cases where the coroner has ruled against holding an inquest at all, or will not to enlarge its scope, despite the request of the family. 99

Choices over clinical mediations Where ECHR, Article 2 is engaged, it may well be that proceedings have had to be issued before an inquest hearing, so as to preserve the right to sue, bearing in mind that the time limit for issuing claims under the Human Rights Act 1998 is 12 months, rather than the three years allowed for negligence claims. But usually there will have been agreement that active steps within the litigation will have been placed on hold until the inquest has been completed. This is not the place to express a firm view as to whether inquests, as a process in themselves, offer a satisfactory sense of resolution to grieving families. They might well not do that. Even when run by a sympathetic Coroner who truly investigates and inquires after the truth, and gives families leeway to participate fully, an inquest is usually a technical event with the full trappings of a courtroom, and yet with ambiguity at the heart of its outcomes. No civil or criminal liability is decided by an inquest’s outcome. The Coroner (or jury, if there is one) answers the four questions noted above, and in more complex inquests, can return a narrative conclusion, noting significant circumstances relating to the deceased’s death, including any failings that may have caused or contributed to the death. The Coroner can also make recommendations for action to reduce the risk of future fatalities from a similar cause, by sending a written Prevention of Future Death Report to the appropriate state body. However, uncovering fault and impliedly seeking to identify blame is what goes on just beneath the surface of the inquest process, certainly so far as the advocates are concerned, if the Coroner gives sufficient latitude. Nor is the inquest usually the end of things for the family. If it were, it might allow them to start on and work through the grieving process, especially (and ironically) when blame is discerned as capable of later proof through a civil claim. If the family can get funding, or are able to pay privately, then there is the whole litigation process to contend with in order to get whatever satisfaction the payment (or not) of compensation may give. A  civil claim is the only way to obtain a ruling on civil liability and so can be an important way to achieve accountability. In doing so, however, claimants have to bear in mind that clinical claims are the hardest to bring home, with the need to meet and overcome the Bolam standard, by which doctors may be able to exonerate each other’s standards of care, and the multifarious problems of establishing causation and damage. Such difficulties will puzzle families, who may have thought that the conclusion of the inquest had vindicated their view of what went wrong. Alternatively, the family may feel the inquest conclusion was not strong enough and did not address their concerns. In all these different scenarios, however, the inquest is a good trigger for thinking about whether a mediation might resolve unresolved concerns, enable safe communication between the family of the deceased and the NHS body involved, directed towards the option of relatively early resolution. Mediation can afford a timely opportunity to make sure that 100

Who? Selecting the right mediator all questions, however trivial, can be raised and answered, if possible. It can enable steps to be taken to start to rebuild a damaged relationship between the family and the clinicians in question, and even the NHS as a whole, with a sense that their tragedy may not have been wholly in vain if changes in practice have been made for the future. It can be especially powerful if the family are able to agree a set of actions for the Trust to implement to ensure lessons are learned. For reasons which may emerge at such a mediation, it may not be possible to agree final and conclusive terms, but at least a directed conversation within a mediation at this stage might identify what further investigations or steps are desirable. There has always been an assumption that mediation is a ‘one off’ event. While this has been the usual format used, there is no reason at all why the process cannot be designed to spread over more than one occasion, if this is what is needed for an effective route towards resolution. The process is flexible enough to accommodate both final and provisional outcomes with future planning agreed and reviewed on a projected timetable.

Where? The ideal venue for mediations This can be dealt with briefly. The ideal venue is one perceived to be entirely neutral, such as a mediation provider’s suite of rooms, or rooms in a hotel. But these have a cost attached, and in practice mediations of clinical claims are mostly held at the solicitor’s offices or counsel’s chambers of one of the parties. The mediator still needs to be aware of possible reactions on the part of a claimant who comes to the NHS panel lawyer’s office. On occasions the opulence of such an office has set up a real barrier in the claimant family’s mind, which the mediator has to address in order for it to be overcome. Practical details of venue set-up are dealt with in Chapters 6 and 7.

Who? Selecting the right mediator There have long been discussions as to whether it is best to have a mediator with sector expertise in whatever sphere the dispute lies, whether it be someone who has practised as a professional or as a lawyer in the field. So it is said that a surveyor might best be used to mediate a building claim, a lawyer to mediate a professional indemnity claim against another lawyer, or, in the clinical claims sector, a healthcare professional. In some jurisdictions, it has been asserted that such mediations must have a medically qualified mediator, perhaps working with a colleague with more specific mediation skills. It is argued that because such claims are so technical, no one but a mediator thoroughly grounded in those technicalities by training as a doctor can adequately manage the mediation process. 101

Choices over clinical mediations This attitude of mind must be challenged, as it betrays several misconceptions about the status and role of a mediator, and also what actually happens in clinical mediations. The first essential for an effective mediator, and thus an effective mediation process, is the neutrality of the mediator, not just the fact but also the perception. It will be all too easy for a claimant against a healthcare institution or professional to suspect that a mediator who is also a healthcare professional may not be entirely neutral at all times or at every level. Trust in the mediator is a fundamental requirement for the success of a process in which the mediator will spend time in private conversation with a claimant team and then leave to spend appreciable time with the opposing team which represents and is constituted of healthcare professionals, often bringing back information, opinion and offers. There is an inevitable risk that such a claimant team will suspect that any adverse question, message or offer brought by such a mediator from the room of a healthcare defendant team is open to suspicion as being less than neutral. There is a related worry about this. Until relatively recently, the medical profession has tended to adopt a rather lofty attitude to their patients. There may be a few pockets of practice where this is still true. Perhaps this view was based on the idea that only doctors can really understand the mysteries associated with their craft. This is related to the perfectionism that the medical professional has inculcated in successive generations, where the highest skill in practice is very properly expected, so that to admit that you have been less than perfect is difficult to accept. It is to be hoped that the paternalistic ‘doctor knows best’ approach to medicine has broadly had its day. But to expect claimants to be necessarily comfortable with a doctor mediator, when they feel, rightly or wrongly, that they have been let down by a professional or health organisation in whose skills they placed their trust, is asking a lot. If a lay claimant thinks for a moment that a doctor mediator might be condescending to them or allying with the medical team in the other room based on some underlying professional assumptions, there is indeed a serious risk that a mediation will not work. It will also not be good for a doctor defendant to think for a moment that the mediator is either an ally or a professional critic. Humility and self-deprecation are far more useful traits in a mediator, and are more likely to generate the necessary empathy than self-confident professionalism. The second misconception is that a mediator must understand every technical clinical intricacy that arises in a clinical mediation, otherwise they cannot be effective. This seriously misunderstands the nature of the mediator’s job, which is not to decide any issues in dispute, but to make it possible for the parties to decide them, particularly needing proper advice and guidance from their legal team, and hoping for the same from the expert evidence they have chosen to deploy, albeit that the expert’s duty is technically owed to the court and not to the party instructing that expert. (Clinical mediations with litigants in person will raise different questions: currently these are relatively rare in England and Wales, but they may 102

Who? Selecting the right mediator well become more frequent as legal funding is increasingly constrained.) Mediators come to most mediations having been given an outline of the circumstances surrounding the dispute, as publicly asserted by each party. They do not see all the documents or other material because they do not need to do so. Judges and arbitrators must of course assemble full knowledge of every piece of relevant evidence in order to make findings and declare judgments. But mediators do not do this. They leave judgments to judges, for the very reason that the process they deliver and manage offers different ways of engagement to participants, such as confidential discussions with the mediator, and a safe environment in which to explore the possibility of a self-determined set of outcomes. Mediators can never know all there is to know about a case in the way that each team can, but they do not need to, because they leave the obligation to assess strengths and weaknesses with each team, so that they can make their own choices about what is and is not acceptable. It is wrong to think that a mediator must be equipped with sector expertise before they can be effective. Of course an intellectual ability and willingness to understand the broad issues, both medical and legal, is important. But what mediators do above all else is provide expertise in delivering the mediation process, through which the parties can decide whether to agree a solution, or revert to a decision-making process in which they effectively surrender the possibility of self-determination and pass responsibility for that decision to a third party – a judge or arbitrator. Mediators simply do not ever get involved with deciding whether a clinician was right or wrong to do or omit to do what is alleged. Their job is to help others form sensible judgements about such matters, based on their own partisan advice from their lawyers. Mediators spend much of their time seeking to shift each party’s perspective on any dispute, and those with experience in the injury claim field may be better equipped to ask probing questions. If a mediator can help a clinician to shift perspective to see that their patient may find it helpful if contentious matters would be discussed in a different way, this will almost certainly generate progress. That is more a matter of attitude than technicality, especially as it may involve talking at a level to suit both the feelings and the understanding of lay patients as well as clinicians. The final misconception is that mediations of clinical negligence cases are almost entirely about technical issues, whether clinical or legal. This, again, is simply not so. Such mediations focus to a great extent on the personal needs and feelings of claimants and their families and also the healthcare professionals involved. Joint meetings need to be convened and chaired sensitively so that lay parties feel free and safe to articulate what they really want and how they really feel, usually feeling blocked from being able to do so since the events which triggered their claim, often for many years. Healthcare teams need time and assistance to calibrate and articulate their responses well. While these exchanges may have much to do with the way care is seen to be delivered, they 103

Choices over clinical mediations rarely have much to do with abstruse medical technicality. The level of conversation needs to be pitched to suit non-medical understanding. Having a mediator who can ensure that such exchanges are possible at all, and are conducted effectively, expressed in comprehensible terms, will be far more important to the parties than detailed medical knowledge. Indeed, civil justice systems are rarely able to assign clinical negligence claims to judges with previous experience of that sector, so that judges who do need to make rulings on detailed medical issues have to be helped to understand all the technicalities in order to make a ruling. But while there are those who argue that a good mediator should be able to mediate any type of case, as their essential skills relate to imaginative and responsive delivery of the highly transferable and adaptable mediation process, applicable to any subject-matter, there are special demands which clinical mediations make of a mediator which may properly influence the choice when claimant and defendant lawyers decide who to recommend and select. As there is a small but slowly growing number of mediators with experience and proven skills in the field, coupled with growing shared reputations and developing databases in this sector, it may make sense to start at least with the assumption that prior experience of mediating in this field is a useful guide to a proper selection. All of this is not to suggest that a doctor cannot be an acceptable or good mediator of clinical disputes. Mediators usually supply a CV to parties seeking to appoint one, and it is always necessary for a mediator under consideration to disclose their background and any perceived conflict of interest. Once a medically qualified mediator has achieved a reputation for independence and skill as a mediator, such problems will almost certainly dissolve. As Chapter 4 makes clear perhaps, clinical claims are inevitably technical, both in legal and medical terms. The law as to whether a breach of duty is made out has developed in a way characteristic of such claims. Even if breach may be made out, the question of whether any such breach was the cause of damage which would not otherwise have occurred is often controversial, and such questions are as much to do with expert medical opinion as the law. Even assuming that both breach and causation are made out, the calculation of past and future losses in clinical claims, involving such questions as the cost of future care and accommodation are very different from damage calculations in commercial contracts, employment or property disputes. The medical aspect of a claim can involve considerable technicality, involving differences of expert opinion based on medical literature, down to the problems of reading and understanding medical notes, abbreviations and terms. There can be no doubt that a degree of familiarity with this world can be of great advantage to a mediator, who will not want to be thought to be struggling to catch up with the parties’ understanding of their case. 104

Who? Selecting the right mediator Mediation schemes The mediation may belong within a formal scheme, perhaps set up by NHSR or one of the Medical Defence Organisations (MDOs). In that case, the choice of mediator will normally be made from a panel of mediators identified as suitable and appointed by one of the contracted scheme providers, and approved by NHSR or the relevant MDO. These individuals will have been selected for their experience and skills in dealing with the particular demands of clinical claims. Each mediator’s experience will vary. A very few will have mediated a few clinical claims as long ago as the late 1990s within the first NHS mediation pilot, though there have been very few clinical mediations in the intervening years. Most will have derived experience through the more recent pilot in 2014–16 and since, perhaps adding this to work done in local NHS conciliation or for the Healthcare Commission when it managed second-stage complaints reviews. The panels of scheme mediators are deliberately those of the mediation provider organisation and do not ‘belong’ to NHSR, as it is fundamental to mediators that they are free to operate neutrally and are perceived by all mediation parties at all times to be working neutrally for the benefit of all, and not in any partisan way. Each provider has contracted with NHSR after a full and open tendering process and it is a condition of their appointment going both ways that they remain entirely independent of the NHS. In the recent scheme mediations, there is no evidence of any justified complaints that any mediator has been felt to favour one or other party. However, neutrality is an important topic that calls for fuller comment in the next section. Mediator neutrality There may be some perceived problems with neutrality which are best aired, and it is to be hoped that a frank airing of this kind may allow the feared effect to be dissipated. Firstly, it is fundamental that a mediator should be perceived to be neutral at all times. As already discussed above, this may present problems to those with a particular background. The mediator spends time privately with each party, in circumstances in which only the mediator can know whether the way they are working is truly neutral. It is essential that all members of each team at mediations place trust in the mediator, who in turn must use every means of demonstrating that they are working even-handedly with each party in such a way as to create and preserve that trust, or the process will quickly be subverted. More prosaically, what if the mediator’s fee is to be paid for by the defendant funder (eg NHSR or an MDO)? Does paying the piper influence the tune played? The answer is that it does not (or at least should not), although the mediator should be sensitive to the fact that this will be thought possible. In these days of restricted litigation funding, it has not been unusual for the mediator’s fee to be paid by one party rather than their fee being equally 105

Choices over clinical mediations split between all parties (the ideal approach), and not just in the clinical sector. Insurers have by agreement paid a mediator’s fee in personal injury claims. Employers have similarly agreed to do so in workplace and contractual disputes. And many consumer adjudication schemes, both public (like the Financial Services and Housing Ombudsmen) and private (set up by business sectors to handle consumer complaints and claims) are funded by ‘defendant’ bodies, without any necessary implication that the process is less than neutral. This has often given an impecunious party access to a valued process, whether facilitative, like mediation, or even a form of adjudication, with a potentially binding outcome. This speaks to the wisdom of having mediators nominated by independent mediation providers, with such organisations themselves creating distance between claimant and defendant parties and litigation funders. Providers of mediation services can demonstrate their neutrality in making recommendations based on feedback obtained from previous mediations about the mediators they propose, taken from both sides of the claims divide. So far this is what has happened in England, with NHSR and MPS contracting out the provision of suitable mediators to approved neutral mediation provider organisations like CEDR and Trust Mediation. One more challenge to a mediator’s perceived neutrality may be the mediator’s own background. What is or was their day job before holding themselves out as mediators? Were they claimant or defendant lawyers? Were they healthcare professionals or managers? Did they work for NHSR or a MDO? Does the answer to any of these questions matter, in terms of feeling that their neutrality and impartiality as mediator can be trusted? For it is fundamentally important that every party feels that they can trust the mediator. Every mediator is going to invite each party in private to disclose confidential information about their claim and their views as to their prospects of success, and yet not use that information to their detriment when working in private with the other party. For mediators to have held themselves out to work in the clinical sector, they will almost certainly have had some previous personal or professional history of some kind in that sector, and it is almost impossible for that history not to have been in some way derived from one or other side of the clinical claims divide. Of all sectors of the solicitors’ profession, those involved in clinical claims have historically been the most polarised. You are either a claimant or a defendant lawyer, and your only chance of working on both sides is to change law firms. Barristers divide slightly differently – into those who act predominantly for one or other side, and those who work for both. Doctors can by definition only be associated with the defendant side of healthcare disputes, and the only theoretical balance to this is that we are all potential customers of the NHS and therefore all potential claimants. As discussed above, it is probably harder for a medically qualified mediator to establish a practice as such, even though they may feel aggrieved that 106

Who? Selecting the right mediator their qualification makes them ideal material to be mediators. This book is not suggesting that doctors will not make excellent mediators. They may just have a harder time shaking off a lurking suspicion or perception of lack of neutrality in the eyes of those selecting them. In the end any mediator both can and has to establish a reputation for impartiality, neutrality and independence, just as judges from a particular background have to do. Enquiries from providers about previous feedback should answer any lingering doubts. And in the end too, unlike a judge, the mediator is not a decision-maker but a process manager, so the risks are – in theory – less. Yet nothing should ever detract from the need for every party to feel that they can absolutely trust their mediator. The process of choosing the mediator It is of course necessary for the parties to liaise and agree over the selected mediator. This is initially an unusual experience for lawyers, partly because it takes a lot of commitment to abandon the natural instincts of adversarialism developed and approved of over many centuries of the common law and procedure. Solicitors do not consult each other over their choice of counsel, nor is there any scope for solicitors or counsel to choose a judge. There has been very little inclination hitherto for claimants and defendants to elect to choose an arbitrator to decide clinical claims. So to co-operate with the opposition over selecting a mediator will at first seem a somewhat unnatural act to those who regard opposition as a litigation norm. Of course the spirit of co-operative litigation conduct has been encouraged, and in large part generated, by the Woolf reforms and the CPR, though perhaps not with the universal enthusiasm and readiness that Lord Woolf might have hoped to achieve. Questions to ask when selecting a mediator It must always be remembered that the mediator will not act as an adjudicator on the merits of either party’s case. The mediator’s job is far more to mobilise the mediation process to enable and empower the parties to reach their own self-determination as to whether acceptable outcomes emerge and are or are not accepted. Counsel experienced in representation of clients at clinical negligence mediations are a useful source of intelligence, unlike the legal directories, which are more interested in commercial mediators, despite efforts to persuade them to adopt a more sector-specific approach in specialist fields. So what are the indicia that lawyers for each party might investigate and utilise to choose their mediator, and what might form the basis for legitimate enquiry of NHSR or an MDO or a mediation provider, when discussing those on any panel being held out for choice, or of a fellow claimant law firm or defendant panel firm or an agency such as AvMA or the Patients Association? Here are some: 107

Choices over clinical mediations •

What is the nominee’s previous professional experience outside mediation?

• How long has the nominee been accredited and by which training organisation? • What is the nominee’s mediation experience generally and of clinical claims in particular? (as one might ask a surgeon, ‘how many of these have you done before?’!) • Is there any reason not to feel confidence in the nominee’s being able to cope with the legal and medical issues inevitably arising in this claim? • What is the nominee’s style of mediating? Is it relaxed, flexible, empathetic to both claimants and clinicians, marrying a light touch with handling sensitive and often emotional matters deftly? • Is the nominee instinctively facilitative, not seeking to give opinions or influence the outcome on the merits; or evaluative, ready to say when one or other party’s position is thought by the mediator to be weak? (Beware of being seduced by such a style, which may undermine your or your client’s desire for self-determination! – most mediators in this sector are firmly facilitative, believing that a judge will be better informed, better used and better placed to be a good decision-maker than they can ever be.) • Can you be given some idea of what feedback the nominee has been given by others, particularly in cases of equivalent weight and complexity to the current matter? • Should gender, age, racial origin, language skills or any other human factor play any part in final selection? For a lawyer with any lingering doubts as to choosing a mediator it is almost always possible to arrange a telephone conversation between the lawyer (or even their client) and a prospective nominee to ask questions direct that might meet any concerns. Mediators are accustomed to occasional ‘beauty parades’ of this kind. Should a lawyer’s instinct be to reject any nominee first proposed by their opponent? Providers tell tales of each side’s lawyers rejecting multiple panels of three names for commercial mediations out of sheer adversarial cussedness. The important question on which all parties and advisers will want to be satisfied is whether a given nominee is up to the job in question and whether that person can be trusted by both parties. If an opponent suggests someone, that at least means that they probably trust the nominee, and it now remains for you to decide whether you agree. After all, if the mediator is to go into the other room and test out your case with the other party, it is important that the opposing team should 108

Next steps listen and respect what the mediator raises with them. Of course you must also decide if you will listen and respect anything that the mediator brings back to you from them.

The overall problem of timing As things stand, many clinical negligence claims take a long time to resolve. While this chapter discusses a number of stages in the developing history of such matters at which a mediation might be interposed to offer the prospect of a conclusion, it is hard to be dogmatic as to how long it needs to take for claimants in particular to see a finish to a process in which their concerns are considered and closed. For clinicians and healthcare provider organisations, it is obviously desirable that any suggestion of failure to meet professional standards is sorted out as soon as possible, lessons learned if need be, and the unsettling time of challenge ended so that normality can be resumed. It is not so easy to say how long a claimant needs to be involved with a clinical dispute for its ending really to be felt as having achieved resolution. In some cases, it may be necessary for a series of stages to be gone through before it seems right to wind up engagement in asserting the terms of a dispute and accepting some set of outcomes. Just as bereavement was found by Elizabeth Kubler-Ross to involve a series of stages – denial, anger, bargaining, depression and acceptance – similar stages may be encountered in relation to the events that bring a claimant to make a claim, and what underlies each stage of doing so. Add to those stages the external frustrations that engagement in a claims process may add – unresponsiveness and slowness of process, its technicality and remoteness, perhaps also the expense – coupled occasionally with an often quite unnecessary, but nevertheless real, sense of guilt for not having done more to prevent or intervene in what is seen to have gone wrong, and it will be seen that the emotional undercurrents pull in both directions. Some militate for swift solutions, and some for allowing time for feelings to be worked through before a sound resolution is possible. So an emotionally intelligent assessment is probably required in every case to see what is really needed, what process is best suited to those involved, and when it is best deployed. Generalisations are virtually impossible here. Perhaps the only safe one is that it is very desirable at least to ask the questions necessary to make such an assessment. It is unlikely to be sufficient simply to view a clinical claim as a matter purely of forensic law.

Next steps Having decided to mediate, found a time and venue, and selected a mediator, the next two chapters discuss the details of preparing for a mediation and the mediation day itself.

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Chapter 6

Preparing for a clinical mediation

As is so often the case in other activities, the success of a clinical mediation depends very largely on the amount and quality of preparation put in before it takes place. This chapter looks at the preparation needed by the three different participants and teams – claimant, defendant and the mediator. Some will require co-operation, and some separate work. But the overall objective is to make sure that the mediation day will be as wideranging and productive as the parties desire it to be, with the minimum of anxiety in anticipation of the day and the minimum of surprises on the day.

The initial stages of an agreed mediation Chapter 5 discussed the decision to mediate and the decision about who the mediator should be. This chapter looks at how to prepare for a mediation, so it proceeds on the basis that any such reluctance to mediating has been overcome, the decision to mediate has been made and the mediator has been appointed.

Pre-mediation preparation for mediators Pre-mediation contact From the moment of appointment, a mediator should be seeking to establish good working rapport with the lawyers for each team, and, where given the opportunity, with the parties themselves. Early contact with each party’s solicitor by telephone and or e-mail is advisable, even if little is yet known about the facts of the case referred. No solicitor will be surprised to be asked what the case is about, and their accounts can be extremely helpful in beginning to assess what the most important issues are for each party. Such conversations will also give the mediator (and the lawyer on the other end) the chance to establish the mediator’s style and personality, which again leads towards the building of trust based on openness and authenticity. Pre-mediation contact may involve a meeting in person occasionally, especially in a heavy or multi-party case, but the norm is contact by telephone. No mediation agreement has been signed by this point, so it is always advisable for the mediator to say that this and any other pre-mediation conversation will be treated just as confidentially as if the mediation agreement had been signed, and that nothing will go from this conversation 111

Preparing for a clinical mediation to the other party (or indeed to the lawyer’s own client) without express permission, to be checked at the end of the conversation. It is vital to model a safe environment from the outset, within which to be able to explore both procedure and substantive issues confidentially. There are still many lawyers who have not attended a mediation, and giving them reassurance that neither the mediator nor the mediation process will expose their inexperience will help. Lawyers are uncomfortable about doing things they have not done before, especially in front of their clients, and it is rare for any lawyer to be asked to negotiate face-to-face with their opponent in front of their client. Such a milieu is actually more familiar to transactional lawyers than litigators. Even barristers will normally only negotiate with their opponent privately, whether at the court door or in a round table meeting (RTM), reporting to their client away from the opposition in a private room. So it is important to give reassurance to any lawyer unused to mediation that: • the process is informal and flexible enough to be designed to suit the needs of individual parties and disputes; • engagement in the mediation will not expose them to embarrassment in front of their client; • their team will have a private room for consultation on their own or with the mediator throughout the mediation, and (like the current telephone call) the mediator will operate on the basis that anything heard when in their room is confidential to them, and will not be taken to any other party without express consent; •

while there may be occasions when all parties and representatives meet together, these will be chaired and managed by the mediator, and time will be allowed in which to prepare for any such meeting. The meetings will be conducted with an eye to avoiding surprises and without putting any party under pressure to respond to another party’s probing before being able to consider their response: in particular, no joint meeting will be convened at the beginning of the mediation without ample time to prepare for it;

• there will then be ample time to discuss matters with the client privately throughout the day; • the confidentiality of the process means that no harm can be done to a party’s ‘on-the-record’ case if settlement is not reached. No admissible evidence may be generated during a mediation, and any decision not to settle at the mediation cannot be the subject of criticism at a later trial; • their client will be given as much opportunity to participate in private and joint meeting as the client wishes, but will not be subjected to cross-examination by another party; 112

Pre-mediation preparation for mediators •

the legal team’s role will be to give partisan advice to their client throughout the process as to the wisdom of considering what is proposed in the course of the mediation, comparing and contrasting proposals with the prospects of success and the risks of failure if a decision is made to initiate or continue with litigation, whereas the mediator will not be interposing their own evaluation of the merits.

In general the mediator needs to help each lawyer realise that their job at a mediation is rather different from what they do in normal adversarial litigation conduct, whether advice, advocacy or participation in an RTM. On all those occasions, the instinct is never to give any sign of weakness, and always to put your case at its strongest, whatever concerns may be felt privately. At a mediation, and almost always only in private, it will inevitably be necessary to discuss whether there are any weaknesses and risks to a given position in front of the client and possibly with the mediator in the room. This will be uncomfortable, and requires very considerable belief in the safety of the mediation process and the trustworthiness of the mediator in not signalling any such weakness to the other party. No settlement is likely in the absence of some small degree of compromise, although any party is free simply to reject compromise and seek to achieve a better outcome in court. Helping lawyers to see that if their client decides that they want to settle, even perhaps against the lawyer’s advice, an honest appraisal of risk in private will be necessary during the mediation. This is a good way to prepare the ground for such discomfiting discussions as may have to occur. It is the security of the mediation process that makes them possible. The mediator should consider offering to speak directly to the lawyer’s lay client before the mediation, not about the issues and merits, but about the mediation process, to give parallel reassurances in good time before the mediation day that there is little to fear or worry about from engaging in the mediation, and that if the client wishes to participate in any joint meeting, they will be welcome to do so. This can be offered as a private call on a confidential basis direct with their client, or as a conference call, with their lawyer being part of the conversation. Sometimes such a call is rejected by the lawyer or their client, but experience suggests that they can be very valuable and much appreciated by lay parties, and it is good practice to offer it. During such a call, parties can be reassured that at the mediation they can say what they like and what they feel as well as what they think, without any fear of criticism or come-back or weakening their position. They can be reassured that getting emotional is common and that this can be accommodated without embarrassment for them. Mediators should encourage lay parties (whether claimants or their family members or clinicians or hospital managers) to view this as their ‘day in court’ and the chance to say what they really would like to say, unfettered by rules of evidence and unembarrassed by having to do it in a public courtroom 113

Preparing for a clinical mediation (a venue where clinical claims very rarely end up). If they wish, they can read a prepared statement, if afraid that they might dry up when extemporising. Research has shown that claimants and often clinicians greatly value just having the opportunity to have their say to those who they feel need to hear it, and that participation in a mediation to that extent alone confers considerable benefits, regardless of outcome. The litigation process hardly ever affords an opportunity to do this. Both lawyers and their clients may express advance reluctance to meet in a joint meeting towards the beginning of the mediation. This can be for a number of perfectly understandable reasons. Exposing the lay members of their team to the opposition may seem risky to lawyers used to RTMs, both for their clients and for themselves. Lay parties may feel uncomfortable about confrontation of this kind. Experienced mediators have found that such meetings are really invaluable and in retrospect much appreciated by parties, even if limited to an opportunity for the teams to meet and put faces to those on the other side of a claim. Far more often the development of direct yet secure communication proves beneficial. At the pre-mediation stage, if reluctance is expressed, all mediators can do is to give such reassurance as they can about making such a meeting constructive and managing it for the benefit of all, and to seek that an open mind is kept about this topic until the mediation day. If no reluctance is expressed, then pre-mediation discussions should proceed on the basis that an opening joint meeting will be convened, as a norm. Mediators should always use early contacts with each party to raise the subject of non-monetary extra-legal benefits to be gleaned potentially through participation in the mediation and its possible negotiated outcomes. Raising the topic well in advance of the mediation day gives an opportunity to plan for these and also to ensure that the right people attend the mediation on both sides of the table. Inevitably, the legal approach to dispute resolution focuses on establishing or resisting breach of duty, causation, damages and due compensation. But the evidence from research shows convincingly that claimants also want an apology or acknowledgement, an explanation of what happened, and reassurance of changed practice based on lessons learned, and that defendants often are keen to give any or all of these, especially during a confidential mediation in parallel to discussions on the legal issues. It is clearly right to explore which, if any, of these might be desirable to claimants and deliverable by defendants. For claimant lawyers this means asking their client the question that perhaps is not asked enough at the very outset of the professional relationship between a litigation lawyer and their client, namely ‘what do you really want out of making a claim?’ The answer will not always just be ‘money’. Closely related to the issue of non-monetary extra-legal outcomes is the question of who attends at the mediation. Claimants should always be encouraged to bring their spouse, partner, close relative or friend as a lay support who can help the claimant preserve proper perspective, take them for a walk if they are feeling the need for a break or time to think about 114

Mediators and their own preparation what has emerged away from the legal team. This gives the legal team a breather as well. But there is also the question of who might best deliver any of the non-monetary outcomes from the defendant team. These issues are discussed further below in dealing with the different approaches of the claimant and defendant team to preparing for a mediation. It may even be necessary to negotiate that a particular clinician does not attend the mediation as they have been perceived to be unsympathetic to the claimant. There will also be practical issues for the mediator to check, such as the venue, with rooms for each party and a larger room for joint meetings, times to start and finish, lunch and refreshments, and the terms of the mediation agreement (discussed in Chapter 3). Also agreement will need to be reached about what papers the mediator will be sent, and when. Because the mediator is not a decision-maker who needs to go through the evidence line by line, the bundles do not have to be on the same scale as trial bundles. This is discussed further below. It is best to encourage the parties’ lawyers to discuss the composition of the bundle and responsibility for assembling it. This is often done by the exchange of a draft index for agreement. Some mediators and providers try to agree timetables for delivery of bundles, now quite often sent as electronic bundles rather than paper. As long as they arrive in adequate time for the mediator to read them before the day, with the parties remembering that mediators may have other commitments around which they have to fit their reading, all should be well. Quite often they arrive only a short time before the mediation day, and this can create difficulties for the mediator. Case summaries prepared specially for the mediation can be useful, especially if they are prepared jointly by agreement between the two or more parties, outlining the common ground and listing the issues and a chronology. There is a danger that such a written exercise (often unfortunately called a ‘position paper’) will indeed reinforce perceived positions in a way that does not always help at the start of a mediation, especially if further reinforced orally at an opening joint meeting. Such case summaries are privileged from production at any later trial. Parties can thus choose to express the possibility of adopting a flexible approach towards settlement within the confidentiality of the mediation process, which may encourage opponents to reciprocate. At the conclusion of every pre-mediation conversation, with whoever it is held, the mediator should always refer back to the confidentiality agreed and check what, if any, information or message may be conveyed to another person.

Mediators and their own preparation The mediator’s own ways of preparing for the mediation remain to be considered. Each mediator will have preferred ways of doing this, but these are likely to include: 115

Preparing for a clinical mediation • reading the papers and case summaries carefully as soon as they arrive, if necessary preparing your own chronology to set the dates in your memory as far as possible. Nothing generates greater impact on parties than a mediator’s ability at the mediation to cite the date of a key letter or document or event. Bear in mind that very often the bundle remains unconsulted and unopened at the mediation, so getting to close grips with it in advance is good practice; • reflect on the technical medical issues and equip yourself to understand terminology and abbreviations in the expert reports, consulting Google, textbooks, articles etc where necessary; • consider whether any issue has subsequently arisen, not anticipated in your earlier telephone calls with the lawyer, which might impact on who comes or on how they need to prepare, and make the necessary calls; • check (and if necessary get further information on) whether it is clear from the papers: – how the claim is being funded, whether on a pre-April 2013 CFA with recoverable success fee and ATE; or post2013 with ATE (or not); – what prior offers have been made, whether informally or under Part 36, and when? Are they still open for acceptance? Judges must not be told what Part 36 offers have been made before they deliver their judgment at trial, but there is no reason at all why mediators should not be told: it would be foolish to allow a party to offer less favourable terms than a previous Part 36 (or indeed any other) offer without giving a very good reason, so you do need to know what has been offered before. – is there a substantial benefits sum to be recovered by the Compensation Recovery Unit? – what (if any) interim payments have been made on account of damages, and when? As to planning how the mediation might go, some mediators will wish to do so in detail, noting possible questions for each team. Others will trust to spontaneity and serendipity. So much depends upon the impact that each team individually and collectively makes during private meetings on arrival. With increasing experience, mediators are likely to opt for a less structured and more responsive approach to whatever is thrown up when they get to the venue.

Pre-mediation preparation for claimant teams Much will have been derived from reading the previous section devoted to the way mediators approach the task of mediating cases in the clinical 116

Pre-mediation preparation for claimant teams sector. This section looks at the same stage, but through the eyes of the claimant team, with the defendant perspective considered next. The claimant client will almost certainly never have been involved in a mediation before. They may never even have heard of the process, and this inevitably places a considerable burden on their adviser, particularly if the adviser too has little or no prior experience of mediation proper. Many lawyers will be familiar with RTMs, and feel perhaps that a mediation will not be very different. This is a misconception, in view of how many (if not most) RTMs are conducted, with the claimant usually excluded from substantive discussions between lawyers and rarely meeting the defendant team, who in turn almost never bring clinicians to an RTM to meet lay claimants and their families. The debate at RTMs is invariably concentrated solely on the legal issues – breach, causation, quantum and money. But as we have seen, these topics are often of peripheral interest to lay claimants, who have for many years been looking for much more in terms of resolving the way they feel about their clinical claim. Mediation presents a considerable opportunity for lay claimants and their families to try to obtain some of these other sources of satisfaction, besides dealing with monetary compensation. These are deliverable either actually through participation in the mediation process, or by negotiating for such outcomes during the mediation, for later delivery. So if you have hitherto approached your client’s case on the basis of its being a technical medico-legal dispute, you might ask your client the question ‘what would you now really like to achieve out of engaging in this resolution process’, and taking the answers seriously and imaginatively. Research suggests that many parties who make claims against clinicians will suddenly admit to a wide range of possibilities once they have been given permission to consider them. These include the following. •

The opportunity to meet with appropriate representatives of the defendants to tell them what it has felt like to believe that the treatment they or their loved one received was sub-standard, and to see and hear how they react to their account. They can, in effect, be guaranteed a sort of ‘day in court’ of the kind that they cannot be guaranteed within a civil justice system where hardly any cases reach trial, and where it is often expert rather than lay evidence that is the main focus. Even when a claimant does give evidence at trial, their desire to say what they wish is restricted by rules of evidence and procedure. So it is important for lawyers to encourage their clients to take the opportunity to speak at a mediation, if the client so wishes and feels able to do so.

• It is for the defendant team to decide whether it can offer a full apology for things that admittedly went wrong, or whether in a given case they feel that they can do more than acknowledge the claimant’s misfortune, while denying breach or causation in 117

Preparing for a clinical mediation full or only making limited admissions. But it is always open to a defendant to say sorry for the bad experience a claimant has undergone, even if this is coupled with a denial. Such human expressions of concern can still be valued by claimants. C claimed under the European Convention on Human Rights (ECHR), Article 2 as a victim in respect of the suicide of C’s autistic child X shortly after being transferred to adult care on attaining adulthood. DD Trust (responsible for X’s health provision) and two other public bodies involved with X all expressed heartfelt apology for their parts in this family tragedy but denied any legal liability and declined to offer any monetary compensation. DD Trust offered to involve the claimant in a review of their offering for autistic adults. C accepted and withdrew her monetary claim, with each of the defendants agreeing to bear their own costs. • Explanations of what happened (or did not happen) and why are often hugely valued by claimants and their families. Very often claimants can harbour questions for many years, which may even have led to prolonged feelings of guilt over the possibility that they somehow contributed to what went wrong. At the mediation – nine years after the birth – of a claim for C, afflicted with cerebral palsy consequent on birth hypoxia, and a claim by the mother in her own right for consequent psychological damage, a meeting without counsel was convened for her to ask questions of the consultant obstetrician now leading the hospital department, who had successfully delivered her later healthy children. Her first question was whether she had contributed to C’s disability by refusing a foetal blood sample at a critical stage, an inference she had picked up from a comment in the SI investigation by the previous consultant. She was firmly assured that her refusal was immaterial. Given the circumstances and the absent blood sample (declining which was not capable of criticism), the DD Trust team should have delivered her child within 20 minutes, instead of the 1½ hours during which hypoxia occurred. C’s claim was later settled for the equivalent of several million pounds, and also the mother’s as a secondary victim. • Similarly, huge benefit can be conferred on claimants and their families when given detailed reassurance that what they or their loved one went through was not in vain, that lessons have been learned and changes have been made to procedure, almost representing a memorial to the tragedy inflicted on those involved in the instant claim. Further instances are given in Chapter 7, but one illustration is useful here: 118

Pre-mediation preparation for claimant teams The family of a 14-year-old, who had died of self-inflicted suffocation after embarking on a long course of self-harming, sued an acute mental health NHS Trust under the ECHR. The inquest had been painful and unsatisfying, and proceedings had just started. An early mediation was convened, at which senior staff from DD Trust attended all day and painstakingly went through a detailed schedule with the mother, father and two adult siblings, listing changes made as a result of what had happened. The family found it hugely satisfying for DD Trust to have been prepared to invest so much effort into answering their concerns and changing practice. Financial claims were settled shortly after the mediation. • A hidden fear among claimants can be the worry that, because they have made a claim or created trouble, the Trust involved (in whose care they would still be in a medical emergency) has put them on a blacklist somewhere as being troublemakers, which might lead to their receiving less sympathetic attention in some future hour of need. Sometimes such fears only emerge because the mediator raises them when questioning the claimant or family before or at the mediation. The claimant’s lawyer can take the initiative on this and ensure that such fear gets dealt with at the mediation by reassurances from a Trust representative. CC claimed for psychological damage allegedly suffered by both over the death of their neonate child and for physical damage to the mother. They had subsequently become estranged. It emerged at the mediation that both claimants were concerned that DD Trust might have blacklisted them at what was still their local hospital. In a side meeting between them and DD Trust’s manager, chaired by the mediator but without lawyers, firm reassurances were given that this was not at all the case and indeed the manager gave a direct line contact number for them to ring if they had to return to the hospital in future and had any concerns. • Some claimants seek retribution of some kind against an identified healthcare professional, seeking for regulatory proceedings to be initiated, which might lead to a disciplinary outcome or even suspension from practice or striking out. Usually any possibility of criminal proceedings for manslaughter by gross negligence has been ruled out before a mediation is contemplated. If this is what the client wishes to contemplate, this a decision for them on advice, though the mediation may change their mind about this. Being frank with the defendant’s representative that this is in possible contemplation is probably wise, but encouraging the claimant or family to delay a decision until after the mediation is also a good idea, as such an occasion can change perspectives. 119

Preparing for a clinical mediation A claim was made by C against D, a registered osteopath, for negligent treatment which was alleged to have triggered a ‘mini-stroke’ (a TIA) and ten hours later a full stroke, leaving C with permanent physical damage. C had always intended to report D to the relevant regulator but after meeting D  at the mediation and hearing and seeing his response to the claim (which still required considerable compromise from his claim at its highest) C decided not to pursue a report to D’s regulator. The claim was settled for a substantial six-figure sum. Certainly it would be entirely wrong for a mediated settlement to contain a provision which accepted compensation on the basis of an undertaking by the claimant not to report the defendant to a regulator. These non-monetary and largely extra-legal matters fall outside the gift of a judge, yet are often highly valued by claimants and their families. Telling them that they may be available through the mediation process will often surprise and energise them. It is so easy for claimants and families to feel excluded from their own claim, when every letter of report back and meeting in person has to be weighed for proportionality. There are bound to be times when parties feel significantly excluded from what is being pursued in their name, even with the most assiduously client-friendly solicitor. Mediation really offers both them and you as their solicitor an opportunity for bringing them back into the heart of their claim, and taking a degree of control over outcomes, which may even be a relief to both you and them. Lay clients who have felt sidelined will inevitably feel anxious about being promoted back into the centre of a strange settlement process. It is a good idea to encourage clients to take up the offer of a conversation with the mediator about what the process will and will not involve for them, especially if the mediator is one whom you know can be trusted, from your own or a colleague’s experience. You can always ask to be patched into the conversation, if you wish. Conversely, some claimants and their families may indicate in advance that they have no wish to go into a joint meeting with the defendant team. They may be harbouring all kinds of emotions which underpin this view – perhaps anger at what went wrong, often compounded by the delay in having the opportunity to meet the defendants, who may be perceived as wholly or partly responsible for the lack of progress hitherto. Other emotions to be encountered include grief at the untimely loss of a loved one; or perhaps sheer anxiety about meeting a person in a professional position and fear of what they might say or do. These are all understandable emotions, but they are not necessarily solved by sheltering from a confidential encounter with the defendant team within the safe environment created by the mediator and the mediation process. A telephone conversation with the mediator before the mediation day may help to reassure claimants and families that there is nothing to fear, and indeed there may be much to gain, while also underlining that no one can 120

Pre-mediation preparation for claimant teams be required to do anything that they do not want to do. It is wise at least to encourage reluctant parties to remain open to the possibility of a change of mind about this, especially once they meet the mediator in person. Where the defendants indicate in advance that they do not expect to make an offer at the mediation Mediation can seem to be a pointless exercise in cases where the defendants say that they do not contemplate accepting liability or making any offers. However, if it is right that mediation can confer many other valuable benefits on a claimant and family besides compensation, these may still be worth seeking through the mediation, so long as the client’s expectations are managed in advance. There may even be cases where the client’s hopes of success are over-optimistic. If they hear the reasons why their success is unlikely, in a safe environment managed by a neutral mediator, this may assist in persuading them to take seriously the risk of losing. But if the claimant team still feel that the defence view is wrong, then convening at a mediation to hear why they take their view of the case, on condition that they come prepared to listen and open to a change of mind, if persuaded, with a decision-maker present to deliver that change of mind, then mediation can serve a really useful purpose. This topic is discussed more fully in the next section, which deals with the same question viewed from the defendant viewpoint. Should counsel be instructed? This is always a delicate matter. So far no attempt has been publicised of a defendant in a clinical negligence claim successfully arguing that it was disproportionate to instruct counsel at a mediation. It is true that NHS panel solicitors do not always instruct counsel, even despite the temptation to resort to equality of arms. In truth, mediation may in time be seen as an appropriate preserve for solicitors, if they feel confident enough to exercise the option to lead for their clients. It is not counsel’s courtroom advocacy skills, particularly those which involve jousting with a trial judge, that are required at a mediation. Rather it is persuasion skills when meeting with the opposing team in full or lawyer-only joint meetings, coupled with advisory skills when meeting in private with their own client. Private advice does, however, have to be predicated on the best assessment of what will and will not work if the case goes to trial and what risks attach to not settling on whatever offers are made. Counsel can be invaluable to do that job. There is also the question of expense. Mediations inevitably take longer than RTMs because they do not deal only with legal issues. They offer real opportunities for lay parties to participate, which means that the mediator has to visit each party meeting serially, whether joint or private. 121

Preparing for a clinical mediation The aggregate hourly rate at a mediation can be telling and usually it is not the mediator that generates the biggest uplift. However, in difficult or controversial cases, the great value of counsel is being able to offer an educated objective assessment of risks at trial, without which settlement might be unlikely to emerge. Worrying decisions about whether or not to accept a risk-discounted settlement, or press on with litigation, need proper discussion and mutual support if possible. It is particularly useful for counsel to attend a mediation on behalf of a claimant who lacks legal capacity, as counsel will need to be able to satisfy a judge that any settlement, including any discount for risk, is appropriate when seeking court approval. Participation in the debate which led to any discounting will give weight to counsel’s views, which might not be so easy if they were not at the mediation to take part in the debate. If counsel involved in the case has settled pleadings or advised beforehand, but is not going to attend the mediation, trying to arrange availability on the telephone at some point during the mediation can be helpful in avoiding a blockage to settlement because it appears to conflict with counsel’s previously expressed view. Preparing claimants for possible compromise Claimant lawyers, whether barristers or solicitors, are under a professional duty to make the best they possibly can of their client’s case, especially when faced with an underlying fear of missing something themselves or advising settlement at an undervalue, which might be attacked by a client who later seeks separate advice. Lawyers also owe duties to the court: firstly to certify the amount of a claim accurately when paying a court fee based on value; and also not to lodge an exaggerated claim, which might lead to a costs sanction1 even if in other respects a case is won. So it is never a surprise to anyone, including mediators, that schedules of claim are put as high as may be dared or at least as might be justified. But pleadings and schedules never reveal comparative strengths and weaknesses between factual, legal or expert assertions, or the various heads of claim. It is likely that some are strong and that others are privately acknowledged to be weak. But the adversarial mind-set cannot admit of weakness. One counsel may tell an opponent to ‘come off it’ in respect of part of the other’s case, but no admission of weakness is likely to be admitted in open court at trial, or even in front of both an opponent and the client, even in a confidential environment. How does mediation cope with the fact that compromise may well have to be contemplated during a mediation if the client wants to settle? This will be dealt with in greater detail in the next chapter on the mediation day itself. The question now is whether it is wise to prepare a client for the possibility that what was pleaded as a risk-free case on breach or 1 Because of the specific warning embodied in CPR 44.3(5)(d).

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Pre-mediation preparation for claimant teams causation, with a handsomely high scheduled claim, or an optimistically low defence or counter-schedule, may have to be modified if a deal is to be done. It is surely wise to lay the ground for this so as to minimise the risk of client dissatisfaction at the mediation. It is a matter of judgement whether it should be the client’s solicitor or barrister who performs this task, probably based on a sensible assessment of the personalities involved. The claimant’s solicitor will need to convene a meeting with the client and family to discuss all these matters, maybe at a conference with counsel before the mediation day, or at least at an early start on the morning of the mediation. But with so much to check in advance, and time probably needed to set things up, the sooner this can be fixed before the mediation day, the better. Topics for conversation and decision will usually involve: • reassuring the client that the mediation process is safe and cannot do damage to the claim if the case does not settle; •

ensuring that they bring their spouse, partner, relative or friend for support;

• reminding them that the mediation day will be conducted under terms of strict confidentiality created by the mediation agreement, which everyone will have had signed on their behalf on the day and which will bind them and their supporters. This is done to ensure that everyone can feel that it is safe to be frank and open with each other (there may be negotiations about whether and how to handle disclosure of any agreed settlement – this is discussed below); • emphasising that the mediator will run the day flexibly to suit the needs of everyone, and that no step in the process will be taken without due consultation, the freedom to say no, and time to prepare; • encouraging them to think of contributing to a joint meeting themselves, and helping them to decide how (whether writing out a statement in advance or speaking from bullet-points or extempore from the heart on the day), reassuring them that it does not matter if things get emotional for them; they may still prefer their advocate to speak for them, at least to start with, which is fine too; •

encouraging them to think about what they might really want to achieve at and through the mediation;

• preparing them for the fact that the defendant team will have an opportunity to talk directly to them if they choose to attend a joint meeting, though the mediator will ensure that any such exchanges are respectful and conciliatory, and that there will be no evidence on oath or cross-examination; 123

Preparing for a clinical mediation • sensitising them to the possibility that settlement may need to take into account such risks as might prevent success on every point at a trial, but reassuring them that nothing will bind them legally unless and until it is written down and signed on behalf of each party. They will remain free to decide not to settle, without any adverse consequence for them in the litigation if they so choose. Cases with multiple claimants The extra demands made of the mediator and the mediation process, and the professional and logistical problems for claimant lawyers in such cases are discussed fully in Chapter 8. Co-operation with defendants in preparation for a mediation The Civil Procedure Rules 1998 and their overriding objective have, in various ways, generated a far more co-operative spirit in the conduct of litigation than the procedure that preceded them (even if one of the main ways this was achieved was by the threat of costs sanctions). Yet with the continuing tradition and practice of adversarial litigation, the level of cooperation between parties which mediation both requires and generates can still come as something of an unexpected shock. Mediators are relieved that parties have little alternative but to cooperate over such matters as venue, draft indexes and document bundles, identifying who is to attend at the mediation, what level of confidentiality about an agreed settlement is needed in the mediation agreement, who is to pay for the mediator, who will draft a case summary for the mediator and when (if separate ones are envisaged) these should be exchanged, and so on. Such co-operation models the flexibility driven by the mediation process itself and required of the parties if useful and respectful communication is to be established and settlement to be reached in a civilised way. When lawyers trust each other, as well as the mediator, things can certainly flow more easily. But even if, as sometimes is the case, the lawyers do not trust each other, or only find it possible to operate on a strictly professional working basis, at least the mediator can provide a lubricant to progress and a channel of communication. Professional difficulties should not be allowed to obstruct the interests of clients, and the mediator can help with these where they happen to exist.

Pre-mediation preparation by the defendant team Again, it is hoped that much will have been usefully demonstrated by what has been said above in relation to pre-mediation preparation for mediators and claimant teams. Many of them are relevant to the defendant team also, but there are a number of matters relating to the defendant teams worthy of separate consideration. 124

Pre-mediation preparation by the defendant team The route towards mediation In the early days of the 2014–16  NHSLA pilot and the subsequent permanent scheme set up by NHS  Resolution (NHSR), the decision to mediate will probably have derived from NHSLA/NHSR, who have required their panel firms to propose the process, even against the initial instincts or preferences of those panel firms. As Helen Vernon, the NHSR’s Chief Executive wryly (and tellingly) says in the NHSR Annual Report for 2016–17: ‘Getting the lawyers on both sides engaged in mediation has been challenging, but the panel has already been active in building interest with some encouraging early signs’. By ‘panel’ she appears to mean the mediation panel set up by the contracted providers, CEDR, Trust mediation and CostsADR, rather than NHSR panel lawyers…But whatever past resistance there may have been among claimant and defendant lawyers, the pressure generated by NHSR on its defendant lawyers to bring claimant lawyers into the mediation process has been effective and is continuing both to work and to spread greater acceptance of the process as being useful across the sector in England and Wales. It may be, therefore, that a particular mediation has first been proposed by the defendant lawyer to the claimant lawyer in response to being encouraged to do so by NHSR. It is important that defendant lawyers swiftly acclimatise themselves to the benefits of the process so that they can convincingly persuade their opposite numbers (and if necessary the Queen’s Bench Masters and District Judges who manage such clinical claims) to engage in the process at the right time and in the right way. The needs and potential contributions of the defendant team RTMs have been the main semi-formal face-to-face inter-party settlement process used over recent years. This means that there has almost certainly been a tendency to underestimate the importance of considering what benefits might be brought to a mediation by members of staff from a defendant NHS Trust. Reportedly at least, clinicians rarely – if ever – attend RTMs, and even if Trust claims managers attend, they would rarely meet the claimant team, often staying in a separate room, perhaps with the case handler from NHSLA/NHSR in order to approve any settlement proposals which might emerge from discussions between counsel or solicitors. Mediation of a clinical claim makes it possible to contemplate meetings between all involved on each side – the claimant and family with clinical and management staff from the Trust, private clinic or GP practice in question, plus the decision-maker in Trust claims, namely the NHSR case manager. Preparation should involve considering which of these on the 125

Preparing for a clinical mediation defendant side would be useful, welcome and capable of benefiting from attendance at the mediation. Once the individuals have been identified, the next step is to get them ready to participate effectively. The choice of individuals on the defendant team may partly be determined by the wishes of the claimant and family, who may express strong views that they would like to see a certain person at the mediation if possible. Alternatively, they may say just as firmly that there is someone they do not wish to meet at the mediation, perhaps based on a previous bad encounter. Of course a mediator has no power to compel anyone at a mediation to meet anyone else against their firm wishes. But the defendant team can bring someone to the mediation, to stay in the defendant team room as a resource, without ever meeting the claimant or the claimant’s team unless the claimant’s original resistance to such a meeting dissipates. Denying liability In its 2015–16 Annual Report after the end of its mediation pilot, the NHSLA summarised its success in this way: ‘It is our experience of the cases we have mediated both under the pilot and throughout our history that mediation is a powerful forum, giving the injured person the opportunity and the “voice” to articulate the basis of their case and other related concerns which is not possible at a meeting with just lawyers. It is also a good setting to explain why a legal liability has not been established to justify a financial payment’. This underlines that one purpose of a mediation may be to seek to explain why an offer of a compensation payment is not going to be made. So the fact that the defendant team has suggested mediation does not by any means allow the claimant team to assume that compromise is in the air and that some payment at least can be expected, even if meagre. The strategic decision as to this approach will, of course, need to be discussed and agreed between the defendant panel lawyer and the NHSR or MDO case handler. The question then is how to handle this decision with the defendant and claimant teams before the mediation. Should this intention be kept from the claimant lawyer, who may feel that they have been lured to a mediation under false pretences, and face considerable embarrassment in front of an angry claimant who thought they had come to a mediation to get money, and may not have understood that a less positive outcome was possible. But if the defendant lawyer is open about not being instructed to offer compensation, will the claimant’s lawyer advise the claimant to pull out of the mediation, seeing it as pointless? How to handle this will be a matter of judgement, largely dependent upon the working relationship between the lawyers. A mediator’s instinct is to say that expectations are best managed in advance where possible and that the fairest approach would be to be open about this. The way that 126

Pre-mediation preparation by the defendant team it is done is also important, and this needs to be devised remembering that many claimants have extra-legal interests that a mediation can meet besides money. Perhaps an explanation using some or all of the following lines might work: ‘We have looked very carefully at this claim, as have our clients (whether NHSR or an MDO), and on our advice and based on our expert evidence, have formed the current view that there is no basis for paying compensation to the claimant; We may of course be wrong and we are very keen to give you the opportunity to set out why this may be so at the mediation we propose; We, the NHSR/MDO case handler and [someone] from the Trust will be there to hear what the claimant and the claimant legal team have to say, and we promise to listen very carefully and weigh up what you all say to see what difference it makes to our thinking; We also would like to take the opportunity at some agreed stage during the mediation to explain gently and respectfully our views as at present advised both to you and (if the claimant wishes) to the claimant and family personally, so that they all understand where we are coming from: this will give you the chance to change your views if you so wish; If you persuade us to change our mind and [if this is possible] authority to make an offer after all will reside with our team, and we will make an offer based on our revised assessment of the risks of litigation, though this may still be significantly discounted if we feel it appropriate; If what we propose is still unacceptable to your client, then the mediation will end with the claim unsettled and we will continue to defend the case fully to trial on the basis we have already set out; If we do not change our mind as a result of what you say, obviously your client will be free to choose to continue with the claim in court on a fully defended basis, or, if preferred, to discontinue on terms to be discussed at the mediation; But we want also to add that, quite separate from the liability issues, the Trust representative(s) would also welcome the opportunity to meet with the claimant and family to acknowledge the difficult time they have all had, regardless of whether the Trust is legally at fault. They want to reassure them that the Trust remains there to help them whenever they need its services and they would like to see whether there are lessons to be learned about what happened to them which might enable steps to be taken to make sure that it is less likely to recur for others. They also want to establish a clear line of communication between them and the Trust for the future; 127

Preparing for a clinical mediation We are therefore firmly of the view that the proposed mediation can be worthwhile and hope that the claimant team will agree to attend on this basis to see where this takes us; If the mediation does proceed, we suggest that we agree to notify the mediator that it is being approached in this way by each of us.’ Clinicians It is difficult to arrange for busy clinicians (whether doctors, nurses, midwives or from other disciplines) to attend a mediation, especially if it is being convened at a location remote from the hospital. The clinician may well also be resistant to meeting the claimant and the claimant’s family when in the direct firing line of a negligence allegation, whether this is being defended or not. They may have understandable fears about how such a meeting may go, if there is a residue of anger, perhaps made worse by any intervening delay between mishap and mediation, they may feel unsure as to whether they will be able to respond to the claimant and family in a way that they will be able to hear and understand. And if the currently responsible clinician has inherited responsibility for a department since the departure of the allegedly negligent clinician, there will probably be reluctance to undertake the burden of coping vicariously with a past event on behalf of the Trust or other body when there are new patients currently needing care. Yet it is not impossible to arrange, and there may be valid reasons why it is a good idea for a clinician to take the trouble to attend and offer to meet and talk with the claimant and family. Firstly, there was initially a professional therapeutic relationship between the patient and the clinician now involved, whether as the original or successor clinician. There is a proper job to be done to attend to the relationship which has been fractured by intervening events, and clinicians often find great satisfaction from being brave enough to do so. It is worth repeating the case study that was set out earlier. C  had undergone elective surgery to correct biliary reflux, but failed to thrive after an apparently successful procedure. The surgeon decided to re-enter the abdomen through the original surgical wound on more than one occasion to check for possible obstruction. In doing so, some non-negligently caused damage occurred to the gut, which required two attempts at repair through the same scar. In the surgeon’s absence on leave and without the surgeon being consulted, C was moved to another hospital and was discharged better after a month’s conservative treatment. Five years later, the surgeon and C  met for the first time at a mediation late in the life of a litigated claim, during which the surgeon took the opportunity offered to explain the decision-making process to C  in a joint meeting and all attending the mediation. C  and C’s spouse 128

Pre-mediation preparation by the defendant team greatly appreciated the chance to meet and hear from the surgeon, who also expressed deep satisfaction for the opportunity to fix the disrupted clinical relationship. A  mutually acceptable settlement was quickly agreed. There is also the unavoidable relationship between the claimant and the NHS, plus the responsibility for its patients that the NHSR identifies and buttresses in its Framework Document. Clinicians must play their part in doing what they can on behalf of the NHS or their professional colleagues to foster that relationship with patients, even if those patients are also claimants, and indeed with potential patients too. Often the clinician is best placed to give authoritative reassurances and information about what went wrong and how attempts have been made to put things right. This can be done by a representative on instructions, but it pays to consider who possesses the best voice to use to satisfy the concerns of the claimant and family. There are also deeper potential benefits for clinicians, to be considered when involving them in an encounter with a claimant team, as was shown by the stories told by Eric Galton and Henry Marsh and recounted in Chapter 1, with their references to the possibility of forgiveness. Forgiveness is not something that a mediator can promise to deliver. It is not something he/she is entitled to expect parties to give, or even consider, but experience certainly supports the idea that reconciliation at a variety of depths may emerge from honest and authentic encounters between patients and clinicians in a safe environment, with the help of a neutral process manager to facilitate communication. There will be clinicians to whom such possibilities might be mooted, and who would respond well to the opportunity to meet. The possible benefit at least of clearing the air and ending the therapeutic relationship amicably would be welcome. Everything depends on the personalities involved, and minds can always be changed at the mediation. No mediator will put clinician and ex-patient together without careful preparation in both rooms in private beforehand. But if the clinician is not at the mediation, the option to explore such a possibility simply does not exist, nor is the opportunity likely to recur. Thus it may be worth not simply taking no for an answer from either the claimant or the clinician about whether the clinician is present at the mediation, or an NHS body which seeks to protect its staff from exposure to the claimant and family. Either, or both, of them may not have thought through the implications fully enough, and minds can change once mediations start. It may help for the clinician to have the opportunity to talk with the mediator before the mediation day about how the mediation process will be run. It is possible that the reluctance may be to do with not understanding what will (and will not) happen at the mediation and the confidentiality of what is said. 129

Preparing for a clinical mediation If there are genuine time pressures on a clinician, mediators are well used to negotiating a convenient slot during which they can be present, even if they must arrive late or go early because of other commitments. Claimant teams are usually perfectly happy to accommodate such needs and the mediation process is sufficiently flexible to do so as well. Trust Claims Managers and GP Practice Managers These staff are to be encouraged to attend any mediation of a claim against their NHS body, as they will be seen as the face of that body in the eyes of the claimant family or patient. It is very likely to be considered disrespectful if no one from the relevant part of the NHS could be bothered to turn up. The mediator needs to be told in advance if this is likely to happen, so that any dashed expectations felt by members of the claimant team can be managed. Quite often the Trust or GP practice or clinic manager will be the only person who attends as the visible presence of the organisation. The relevant doctor, especially if not of consultant status, will very often have moved on from that post and not be available to attend. Having come, though, Trust claim managers and GP Practice Managers have an important role to play as representatives of the NHS body. This calls for thought and preparation and a degree of commitment and sensitivity to the importance of what they do and say. Since claimants are likely to perceive a Trust manager as the face of the hospital which they believe let them down, it is important that any opportunity to engage with the claimants and family is taken. The same applies to the practice manager of a GP practice or a manager of a private clinic. This will need advance preparation, to check whether the relevant defendant body is able to deliver what is sought. Being clear about whether an apology can be given needs to be discussed. Quite often an apology has already been given, sometimes in the form of a letter from the Chief Executive or other senior manager. However, these are not always well received, especially if there has been the slightest hint of defensiveness in their drafting, or where a letter has been signed ‘p.p.’ by someone else, or was obviously drafted by someone else. The manager attending the mediation should check all previous correspondence between the claimant team and their organisation thoroughly and assess its likely impact on the recipient. The defendant lawyer may be able to convey concerns of this kind derived through contact with the claimant lawyer during the preparation for the mediation. The objective should be to neutralise any unnecessary adverse impact made on a claimant family by the way the Trust has handled their concerns hitherto. This does not mean that admissions of responsibility should be made where they are not justified. A claimant may have had a really bad outcome to treatment, but what happened may have been within the scope of the informed consent given, after due explanation by the clinical staff before 130

Pre-mediation preparation by the defendant team the treatment. Or the treated condition may have been so serious that any slightly suboptimal treatment has made no difference to the outcome. Or it may be that the care given was entirely within the protocols operating in that healthcare centre or in accordance with established NICE Guidelines, so that the poor outcome cannot be blamed on the Trust or organisation accused. So it may be felt, often rightly, that there is no legal liability. Yet that is not the end of the matter. It must be remembered that the claimant was a patient of the organisation concerned at the time, and that the patient perceives something to have gone wrong. Indeed, the patient may have been advised informally that something has gone wrong, whether by Google, a knowing friend or a lawyer in a professional context. It is incumbent upon the defendant to do all it can to restore that patient’s undermined faith in that hospital or clinic or practice, particularly if the claimant is still in the catchment area for that NHS body. At least this may be required of the NHS or medical profession as a whole, remembering that like every other citizen, this claimant may need the care of the NHS again in an unpredictable way and at an unknown time, and will then have to trust in the care being offered. Often the root cause of dissatisfaction about clinical care is poor communication, and if it is realised well in advance that a mediation can be used to restore and improve communications, useful long-term outcomes can be achieved. This is so even where the decision is made by the defendant team that at the mediation they must say to the claimant team ‘we know you have had a terrible time, but although we will listen carefully to all you say and take it into account, at present we are unpersuaded that the defendant is legally liable to you’, along the lines set out in the section above on denying liability. NHSR and MDO case handlers and other decision-makers The presence of the NHSR case handler or manager, who is the representative of the NHSR as ultimate decision-maker in claims against Trusts, is highly desirable at any significant mediation. The same applies to the MDO indemnifying a GP practice or private consultant, or the insurer of a private clinic. An absence runs the risk of being perceived by the claimant and more especially their legal team as disrespectful, and possibly creating problems over authority to settle. It is also potentially disabling as to later decision-making during the mediation. If matters emerge that might alter the risk assessment made before the mediation and on which a set authority was conferred on the legal team, it is never easy to pick up the tone and content of the changed circumstances at a distance over a telephone line. At the very least, the case handler should be at the end of a telephone, including after business hours, in case instructions are required. The claimant team may need to be reassured that this arrangement is in place even if it represents second best. The better practice is to be present, and 131

Preparing for a clinical mediation best of all with a reasonably flexible authority to settle if so persuaded. The ideal is always that authority is present which could settle the claimant’s case in any amount, if what emerges at the mediation is persuasive. But this is impractical in an organisation which has to disburse public money that could otherwise be spent on healthcare. Claims management structures will monitor and set authorities for each case, and experienced claimant legal teams will know and allow for this. Defendant teams need not think that mediators expect the NHSR representative to have unlimited authority, nor do mediators actually engage with a defendant team about levels of authority in a given case very often. Mediators much prefer to be in ignorance of any party’s ‘bottom line’, in case their knowledge of it unduly influences what they do or say in a way that might obstruct settlement. Sometimes the defendant legal team will indicate that an offer they want to make is the limit of what they can offer, even if they may be able to respond to a further claimant offer to settle at a slightly higher level. Case handlers from NHSR and an MDO might also like to think about how they will be perceived at the mediation by the claimant team, and prepare accordingly. They may prefer to be self-effacing once introductions have been at an opening joint meeting, and simply operate as a decision-maker in the defendant team’s room for the rest of the day. But you are the person the claimant team ultimately has to persuade, and being open about that at some point during the opening meeting is something you might like to anticipate and plan. Multiple defendants This topic is considered fully in Chapter 8. Crown indemnity under which the NHS now operates has simplified matters. Gone are the days when a claimant had to choose whether to claim against any or all of the treating consultant, a named junior doctor, nurse or midwife or the hospital in general. The relevant NHS  Trust is the proper defendant and they undertake indemnity for all those potential defendants. On the whole, mediations do not give rise to problems where there are several defendant Trusts with unified representation and a single NHSR decision-maker. In any case where multiple defendants are involved, careful pre-mediation co-ordination is desirable, checking where the defendants have common interest and where it is necessary for them to operate confidentially from each other. Even if this has not been possible prior to the mediation, the mediator will be able to design the mediation process to ensure that the defendants co-ordinate any joint approach that they think is appropriate, despite the fact that in other areas in dispute their interests may not be aligned. There are both conceptual and practical problems where there are multiple defendants. The obvious one is that the mediator cannot be in more than one room at once, so there will be far more ‘down time’ for each party, 132

Expert evidence: a problem for all parties at the mediation which can cause frustration for the claimant as well as other defendants. This needs to be considered by the mediator, and may require a degree of timetabling that is unnecessary in bilateral claims.

Expert evidence: a problem for all parties at the mediation The final topic in this chapter is one that affects all parties and should be considered by all. A high percentage of clinical claims depend for success or failure upon the persuasiveness of the ultimately successful party’s expert, with the judge preferring one over the other. One of the main forensic skills required of barristers specialising in clinical negligence is the ability to cross-examine experts effectively, with a view to undermining the views of an opposing party’s expert and promoting the views of their own client’s expert. The process of testing out expert opinion in advance of a trial is inevitably far less rigorous than the process undergone at trial. The relevant expert is selected for reputation and expertise in the field and produces a report which, though explicitly couched in neutral terms based on the expert’s overriding duty to the court, is hoped to support the case of the party from whom instructions were derived. If it does not, some means of suppressing the embarrassing report must be found and an explanation given to the client who was asked to authorise it in the hope that it would be supportive. Very many experts never get into a witness box, because even where the main issue requires a choice to be made between conflicting expert opinion, parties and their advisers are willing to settle cases based on their risk appraisals as informed by the expert reports, and indeed based on their risk appraisal of the expert’s opinion being accepted. If this is early in the life of a claim, such appraisal will be based on the separate reports of each expert, which may not even have been disclosed. Consideration will then have to be given to whether to disclose these without prejudice to later amendment (if, procedurally, this can safely be done). If later in the life of a case, there may be a joint report following a discussion of agreed and un-agreed views under CPR Part 35. Experienced lawyers are used to appraising chances of success or failure in litigation based on the continuing differences between the experts. The problem arises over what to do when preparing for a mediation of a claim which is being convened shortly before trial, when despite every effort to reconcile conflicting views between experts, they remain as polarised as ever. Is it ever appropriate to arrange for the experts to attend at a mediation to see whether a last effort can breach the gap? Perhaps the experts might participate in a dry run of their evidence in front of the parties and the parties can see what difference their performance makes to their risk assessment? The main problem is one of expense and logistics. Many Part 35 discussions between busy expert practitioners have to be convened over 133

Preparing for a clinical mediation the telephone because of the problems of getting them under the same roof for a discussion, when often they are as far apart geographically as they are in their opinions. In a case with several experts for each party, the logistical problem can be multiplied appropriately. It can be seen that the difficulty and cost of assembling all experts with an uncertain return on that investment is likely to prove prohibitive. The only counterpoint to that argument is the sheer expense and laboriousness of the way experts are heard at trial. Of course the judge is going to make a choice in the judgment, so there is a certainty of outcome that a mediation cannot supply. But the cost of misjudging the impressiveness of your own expert is huge. The overall cost of a trial with several experts, perhaps even different experts for several defendants, coupled with the cost of the preceding litigation spread over four years will be astronomical. Where those costs will lie (either on the claimant’s legal team if the claimant loses against any one of the defendants, under an old-style CFA, or on a losing defendant) will depend very substantially upon which expert evidence the judge prefers. Might a dry run have been wise, to see which experts would be likely to impress the trial judge, so that a reasonably informed judgement call could be made over whether or not to buy up the risk of losing, if possible? Bringing experts to a mediation might be more possible in cases with one expert on each side who can be assembled easily. Certainly a mediator is well placed to chair a meeting between experts in a way that minimises the risk of one expert dominating the other. The meeting can be conducted on a contemporaneous ‘hot-tub’ basis now often used in trials, and also a ‘goldfish-bowl’ basis, with all teams watching the expert discussion and then being able privately to debrief what it produces and then revisit their risk analysis. In a case where expert views remain polarised in advance of a mediation, an alternative approach is for the mediator to suggest in advance that the experts be available on the end of a telephone at some point during the mediation day for consultation on any development which emerges. They will almost certainly be busy practitioners, but to be able to clarify commenting remotely is perhaps better than having to attend the mediation or being brought to court to give evidence.

Conclusion This chapter has looked in considerable detail at how participants in a projected mediation might best prepare for a mediation. The next chapter looks in similar detail at the mediation day itself, again shifting the perspectives between the main roles of claimant and defendant team and mediator, in the hope that shared perspectives as to what each of them might be doing will assist in maximising what the mediation process can achieve for all.

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Chapter 7

The mediation day

The previous chapter looked at the work required by mediator and each party’s team before the mediation itself is convened. This chapter will look in detail at what happens on ‘the mediation day’.

The mediation day It sometimes comes as a surprise to those used to managing the detail of a complex claim and working through that detail in a courtroom trial to find that a day can be sufficient for the mediation of such a complex claim. Equally, it can feel very frustrating for those who have become used to the face-to-face encounters of a round table meeting (RTM) lasting perhaps two or three hours that a mediation can take so long. These three types of event are, of course, very different from each other, both in concept and content. An RTM is almost always a lawyerled negotiation, the primary feature of which is the debate between lead lawyers for each party, punctuated by breaks in which reports of the discussions are carried back to the privacy of each team room and further instructions gathered for the next direct encounter. Lay parties rarely sit at the ‘round table’ themselves, being there essentially to give instructions in the light of the lawyer-conducted debate, which retains an essentially forensic focus on breach of duty, causation and quantum. Indeed, it is rare for clinicians to attend at all, and NHS Trust managers may play little – if any – role at the ‘round table’, and only a marginal role in private discussions, where the NHS  Resolution (NHSR) or relevant Medical Defence Organisation (MDO) case handler is the real decision-maker. It is rare for any time to be given at RTMs to consideration and discussion of extra-legal issues and the feelings of the lay parties, thus the debate can be conducted reasonably quickly. If such legally extraneous but (as the research suggests) personally highly significant topics enter the debate, the process is bound to be slower, and will almost certainly benefit from being managed by a neutral mediator. A  trial is an entirely different process, in which the neutral (this time a judge) will have to decide every contentious issue in the light of the evidence, whether of fact or expert opinion, whether oral or documentary, applying the law as required. This is, on any view, a very painstaking and slow process. A  judge must be taken to and record for later reference every relevant piece of evidence at least twice – once by each party – and 135

The mediation day will then be addressed on behalf of each party as to its significance, so that it can be fairly adjudicated. Also, a judge must observe the fundamental rule of natural justice, which requires that material evidence upon which any adjudication is based must be processed in front of every party. This prevents a judge from seeing either party in private to receive relevant evidence. Mediators are not adjudicators, so do not need to be taken to that level of detail, as they do not make rulings on fact, opinion or law. Knowledge of the detail of any mediated case reposes already in each party’s team, enabling them to appraise strengths and weaknesses effectively during the mediation. The mediator manages the process whereby information and opinion exchange can inform each party’s review of its position, enabling them to decide whether or not whatever proposals emerge are acceptable. Furthermore, not being an adjudicator, the rules of natural justice do not apply to a mediator, who has the benefit of seeing each party privately on a confidential basis, and can thus facilitate progress. Private meetings are what make mediations slower (but more effective) than RTMs and much quicker than trials. It is normal to allocate a day for the mediation of even quite substantial cases. Some will settle within a few hours, and others may take seven or eight hours, occasionally more. Those attending would be wise not to plan any other activities for that day, even in the evening. Even if the mediation ends early, the emotional and intellectual demands that a clinical mediation can make on all who attend can be surprisingly high, and may give rise to the need for recovery time. There are, however, some limiting factors on how long a clinical mediation can last. Most significant of all is the strain on the claimant and family, particularly if the claimant still suffers from ill-health or the effects of pain. The capacity to make sensible decisions about claiming or conceding lifechanging sums of money for funding the future is bound to diminish as the day wears on, and this needs careful monitoring by the claimant’s team and also by the mediator. The demands of the larger family and child-care, coupled with travel difficulties where the mediation is convened some distance from home can also limit available time.

Practical venue arrangements for the mediator The mediator or mediation provider may be asked to arrange the venue, or the parties themselves may agree where to convene the mediation. Once at the mediation venue, however, the mediator should always take primary responsibility for the venue arrangements, including checking them where they have been put in place by a mediation provider in advance. This is obvious when the venue is a neutral one, such as a mediation suite hired from a provider, a hotel business centre or in an independent counsel’s chambers or solicitors’ office. But it should also be true when the mediation has been convened at the offices or chambers 136

Practical venue arrangements for the mediator of one or other party’s solicitor or barrister. There will be a temptation for the home lawyer to host the event, which will be distracting for them and which might even tend to subvert the mediator’s role. There is a nice phrase which captures well the ideal relationship of the mediator to the parties, which is that the mediator is ‘a guest in their dispute and a host of the process’. It is usually possible to negotiate sensitively with an aspiring home host to free themselves from too much responsibility for the practicalities of the day, so as to be able to concentrate on their client’s interests within the mediation, while the mediator takes on the hosting role. The role of host means early arrival at the venue for the mediator to check the rooms available. The ideal for each party’s private room is that it should be physically separate and soundproof from any other team’s room, preferably with natural light, handy for toilets (especially a disabled toilet, if needed by a claimant), with refreshment, telephone and wi-fi facilities. There should be enough chairs for each team member plus another one for the mediator to use in private meetings, and space for papers and files, which can often be bulky. If offered a row of three rooms for a two-party mediation with movable partitions between each which are less than fully soundproof, the joint meeting room should be in the middle, separating the private rooms for each party. Checks may need to be made as to the confidentiality of each private room. If there are glass partitions opening on to a communal reception area, are there blinds which can screen off the room? Do the windows permit outsiders to see into the room, and are there blinds or curtains or externally reflective glass which can preserve privacy? A check of temperature controls is also a sensible move, as each team will probably spend much of the day in their room. It is normal for the mediator to be placed in the largest room, which should be large enough to accommodate joint meetings of all attending for each team. This might look and feel greedy of the mediator, but it is practical and sensible, in that the mediator needs to be able to manage the set-up of any joint meetings convened during the day. Problems can arise if one team is particularly large, perhaps with multiple lay claimants or defendants when no conflict of interest arises to prevent them from sharing a room. It may be necessary for them to have the largest room, which may also be the only practical venue for any joint meeting. It can disrupt the sense of privacy for the confidentiality of discussions which is at the heart of successful mediation for one team to be ‘invaded’ for a joint meeting of all, and can even disturb that team’s perception of the mediator’s neutrality if the mediator comes into the room for a joint meeting ‘with’ the other team or teams. Mediators need to finesse such problems by naming the possible perceived challenge to that team’s privacy, while pointing out the advantages and disadvantages of allocating the largest room to the largest team and assuring them that at all other times, this space will be private to them. Every opportunity should be taken by mediators to emphasise their own neutrality in both language and behaviour (for instance by arriving into the joint meeting at a slightly different moment from the other team) 137

The mediation day and to mutualise their role in terms of having parallel responsibilities to all and having parallel meetings with all (though not always of the same length). If on arrival at the venue, the mediator is placed in a small private room, then it is still important to negotiate the possibility of being located in the largest joint room, unless in all the circumstances it needs to be allocated to the largest team. This negotiation will also provide a good opportunity to liaise closely with the receptionist at the venue, who will be a vital link for the mediator for delivering venue services through the day. If someone attending the mediation has particular health needs, such as requiring the opportunity to rest or take medication or oxygen, a separate room convenient for the rest of that person’s team and other facilities needs to be organised on the day, if not already arranged. All these responsibilities suggest that the mediator should try to arrive at the venue in advance of the parties and their teams, so that arrangements can appear to be in place without fuss when they arrive. This will enable the mediator truly to host them to their room and settle them unhurriedly into the start of what will seem to lay parties at least an unfamiliar and therefore unsettling day. With the physical arrangements looked after before others arrive, the mediator can then concentrate on the essential task of establishing rapport and building trust with every person attending in each team, putting faces to names and reassuring them of the safety and usefulness of the mediation process. The mediator can also imbue the welcoming process with their natural style, and the relative informality of the process. This is usually the first time that the mediator actually meets the lay parties and quite often the legal teams in person. Even the use of first names and the removal of a jacket can send a useful and powerful message.

Private meetings with each party prior to any joint meeting Once parties have settled in their rooms, laid out their files and had whatever preliminary private discussions they need, the moment will come for the mediator to have at least one substantive preparatory meeting with each party. So long as the mediator makes clear that any meeting with one party will be matched by a similar meeting with all other parties, the order of seeing each team probably does not matter. Often it will be a matter of whichever team is ready to invite the mediator in first. But the mediator’s mind-set should be to have very similar meetings with each team, covering the same ground fully or (with the rarely-constituted team where everyone has previous experience of mediation and worked with that mediator before) in outline, and using language throughout which indicates the parallel nature of the preparatory meetings being conducted. For the mediator, the objectives of all such private meetings with each party, and before any joint meeting is convened, will be: 138

Private meetings with each party prior to any joint meeting • to consolidate the sense in that team that this room is their private space for the day, in which they will be able to have private conversations whenever they wish, retaining control over the entry door, even when the mediator comes to see them; • to reassure them that the mediator will always knock first and only enter if invited to do so; • to underline that at any time that the mediator is invited in, anything heard by the mediator in the room is confidential to that team, and nothing will be taken by the mediator to any other party unless specific authority is given to do so, explaining that exactly the same set-up applies to every other party’s private room; • to explain that the purpose of this arrangement is that the mediator has both the privilege and responsibility of knowing more about where each party truly stands during the day than they would be likely to exchange across a table in a joint meeting. This frees parties to have open and honest discussions about weaknesses as well as strengths when the mediator is in the room, without fearing that the mediator will disclose such matters to any other party without permission. This enables the mediator to make sensible and focused suggestions to all parties as to what the next steps in the process might be, or what might usefully be disclosed between parties or what message might or might not work, if authorised to be conveyed, always reassuring each party that the final decision as to what is conveyed lies with them and will be checked carefully at the end of every meeting; • to lay out proposals for the early part of the mediation process, between now and the end of any first joint meeting to be convened, particularly exploring whether each team is willing to meet jointly, and working out the scope of what such a joint meeting might hope to achieve. This includes discussing which team might speak first to the other(s), and who within each team might speak at the joint meeting and in what order, encouraging lay parties to participate if they feel up to doing so; • to assess the level of anxiety and emotion being felt by lay parties (whether claimants and family members or healthcare professionals), to recognise, respect and respond to those feelings constructively without in any way suppressing them, and also realising that the existence of such feelings (whether grief, anger, fear, anxiety or frustration) is confidential to each party and cannot be disclosed to anyone else without express permission. The wise mediator will seek permission to make such disclosure, to minimise surprises at the joint meeting, and so that responses to the expression of emotion can be carefully 139

The mediation day calibrated, without in any way undermining the authenticity or strength of those feelings: C sued DD Trust over the still birth of her third child who died after a natural delivery had been tried, despite the births of her two previous children being via caesarian sections. It was apparent that C, her husband, and both her parents were very angry and wanted to give full and frank expression to this anger towards the DD Trust team at the joint meeting. The mediator sought permission to tell the Trust team what to expect and this was readily given. The Trust team were glad to be forewarned and prepared accordingly in order to respond in a way that C  and her family were most likely to appreciate, but without flinching from making clear where they disagreed with aspects of the claim and its valuation as sought; •

to say that there may need to be private meetings with any other team(s) before the joint meeting is convened, promising to return to each team to check if anything else has arisen before moving on, and meanwhile giving as much time as needed for each team to prepare for the joint meeting;

• to get the mediation agreement signed by or (more usually) on behalf of each party, sorting out any final queries on its terms and amending as necessary, getting alterations initialled; • to settle all members of each team into what may be an unfamiliar process, offering the opportunity to ask any questions, however simple, and to reassure them that they have entered a safe and secure legal environment in which they cannot damage their publicly-asserted case by what is said and done during the day, nor by declining to settle and withdrawing from the mediation. There may need to be several pre-meetings with each team before all are ready to meet together, and offering a final 10-minute break before it is due to start gives everyone a last opportunity to get comfortable. Mediators need to be sensitive to the fact that claimants, in particular, will almost always be participating in a claim for the first time, as well as having agreed to try to settle it through the mediation process, which will be unfamiliar to them and quite possibly unfamiliar to their lawyer. Making sure that the language used is accessible to newcomers to the litigation process is essential for a mediator. It is also essential to remember that the way claims are analysed and conducted may well seem entirely discordant to the way claimants and their families feel about what they think went wrong. Especially in claims involving a fatality, where the surviving partner or family are there to bring a claim by the estate for bereavement and dependency or a claim under the Human Rights Act, they may well 140

Private meetings with each party prior to any joint meeting find the calculation of the deceased as a provider of services or income a wholly inappropriate way to categorise their sense of their worth and loss. Acknowledging the fact that the law has chosen to operate in this apparently distasteful way may be a good way to build rapport. Similarly, in claims involving psychological injury following still-birth or the death of a young child, parents may well find it hard to accept the limitations placed on their feelings by the legal system, or compensation for what must feel to be a loss which is impossible to compensate adequately. For the claimant team, this may be the first time that the whole team (claimant, family member or supporter, solicitor and counsel and any expert) have come together, so the mediator will expect them to need time on their own before seeing the mediator to deal with what is listed above. However, once the mediator has settled the team in and explained the early part of the process, and left to see another party, the claimant team will have the opportunity to discuss and plan how to contribute to the joint meeting, if it is agreed that this should be convened. Who will speak and in what order? Will it be from a prepared statement or notes or extempore? And what will be covered? Lawyers used to RTMs will expect to move into legal debate in a more or less adversarial way, but it should not be assumed that this is the right approach in a mediation. First, is a joint meeting desirable at all? Are feelings so highly charged that it is likely to be counter-productive? You will find that mediators will always encourage at least a minimal joint meeting, for claimant and defendant decision-makers to be introduced to each other and to enable the mediator to frame the day by reference to what it means for all to have signed the mediation agreement. But the mediator has no power to compel even that low level of engagement, and if one party will not go into a meeting with the other, that may have to be accepted by all. And mediations, with their flexible process, can still lead to settlement in such circumstances. CC sued DD Trust over the death of their child while an in-patient. They would not attend a joint meeting with the Trust, although lawyers on both sides met. DD  Trust accepted responsibility for negligence and breach of duties under the European Convention on Human Rights (ECHR). Agreement was reached on damages and costs and giving publicity to the settlement, although there was never a joint meeting involving CC and the DD Trust team at any time during the mediation. But if a joint meeting is not convened, the problem is that there is no opportunity for the parties to bring the dispute down to a ‘human’ scale. Instead of the teams being groups of individuals engaging at some level in an evidentially-protected conversation, the defendant team will remain ‘the NHS’ or ‘the medical profession’ or even ‘the faceless enemy’ in the eyes of the claimants, and the claimant team will remain at arm’s length, 141

The mediation day people who can only be communicated with through lawyers or a mediator. This takes a really useful dimension out of the mediation process. It is, of course, what legal teams are accustomed to in RTMs, and at some level they too may prefer the relative safety of separated parties as a means of protecting their clients, and perhaps themselves, from the chancy world of emotional outbursts. This may seem sensible at first sight, but in a sector where emotion is unavoidable, to suppress it is perhaps even more risky. Mediators should be adept at managing the expression of emotion in any meeting, and parties are usually the better for having been able to give and receive authentic expression to it. There should be nothing to fear from people meeting and expressing honestly-felt views to each other. Once expressed, however painful the exchange may be at the time, it is normal for everyone to feel that useful business has been done and that it is right to move on to the next stage of discussions. Growing experience of clinical negligence mediation has suggested that it is wise to consider separating what might be termed the ‘personal’ aspects of a given dispute from the ‘legal’ aspects, perhaps to spare the claimant and family from some of the painful issues which will inevitably have to be discussed for risk assessments to be realistic. Also, if a claimant wishes to talk about how things appeared to have gone wrong and how they might be changed, this may have the greatest impact and give greater satisfaction to the claimant or family member if it is effectively the only matter on the agenda for the first joint meeting. A later joint meeting between lawyers for each team, with (or, more usually, without) lay parties present can review the legal aspects and generate any necessary argument about each side’s risks without diminishing any positive effect of dealing with the human aspects first. Here are contrasting approaches taken in mediations of two different psychiatric claims: A  claim was made under the Human Rights Act by the parents of a 15-year-old child who died from self-inflicted suffocation when an in-patient of DD  Trust. After a harrowing inquest, DD  Trust admitted breach of duty and put in place a large number of changes in practice, which they wished to detail to the family. A mediation was convened soon after issue of proceedings, but the claimant’s lawyer felt that until damages and costs were agreed, the ‘lessons learned’ session could not take place. Mediated discussions from mid-morning to late afternoon failed to settle damages and costs, at which point the ‘lessons learned’ meeting between senior clinicians and managers from DD  Trust and family was convened, chaired by the mediator without lawyers present and lasted for 1½ hours. Both sides expressed considerable satisfaction at what that meeting achieved. Damages and costs were finally agreed several days later. *** 142

Private meetings with each party prior to any joint meeting A widow, C, made a Fatal Accidents Act and dependency claim over the death of her husband H when an in-patient at DD Trust. There had been an inquest, following which DD Trust admitted breaches of duty in their Letter of Response. A mediation was convened before proceedings were issued. DD Trust felt they had to argue that H’s episodic mental illness over previous years meant that even if he had recovered on this admission, he would have remained a suicide risk, with consequent impact on life expectancy and his future earnings and services capacity. They wanted not to set out those arguments at the opening joint meeting and this was agreed by both sides. The joint meeting did not deal with those issues, which were discussed later between legal teams, chaired by the mediator, and C and family stayed out of those exchanges throughout though their legal team undoubtedly reported on their relevance and impact in private meetings. For the defendant team, the issues will be how best to respond to whatever the claimant’s needs are. The mediator will try to get permission from the claimant team to bring some intelligence back from the claimant team as to what those needs are and the temperature, so to speak, at which they might be articulated, remembering that a party’s emotional state is of course subject to the protection of confidentiality as much as that party’s ideas or arguments. If permitted, this will give the defendants the best chance of calibrating their response to best effect. Questions for the defendants might be: • Can we and should we give an apology across the table, and if so in what terms, and by whom? Depending on who has actually come to the mediation (hence the importance of good preparation) should it be a lawyer or a clinician, or the Trust claims manager or the NHSR/MDO claims handler? • Would we like to ask for agreement that we offer our apology first, so as to set a positive tone for the mediation from the start of the first joint meeting? •

If breach of duty is in dispute, even provisionally for the purposes of the mediation, can at least some kind of acknowledgement be expressed in terms acceptable to the lay claimant (More along the lines of ‘you have had a terrible time and we are sorry for that, although we still need to discuss legal aspects of the case today’ than ‘we are sorry you feel we failed you and caused loss, but we deny responsibility and will explain why’)?

• Can we give persuasive reassurances that practices have changed since the events in question and who should give these? (again a question of good preparation and the right people attending the mediation). •

Can we give the claimant and family any reassurances about the Trust in particular and the NHS generally in the event that they 143

The mediation day need future care, for instance that there is no blacklist naming those who have complained or claimed? • Does the claimant and family need to hear what the defendants say about the legal or factual issues which affect whether settlement is possible at the first joint meeting, or would such issues be sufficiently well debated by lawyers alone later? • Has the mediator been able to tell us what kind of reception to expect from the claimant team at a joint meeting when convened? While each team is considering and preparing for the joint meeting, the mediator has the opportunity to check the physical arrangements in the joint meeting room, ensuring that there are enough chairs (preferably just the right number at the table for each team member attending), water, glasses and paper handkerchiefs.

The joint meeting – a key encounter The litigation process makes it almost impossible for lay parties to meet, requiring contact through lawyers almost from the start of the process laid down by the Pre-action Protocol. Complaints systems also formalise separation. As one claimant recently said at the mediation ‘I considered making a complaint, but was told that this would mean starting up a formal process, so I was encouraged to express a “concern” instead’. And it is rare for there to be a face-to-face meeting at any time once litigation has started. Case management conferences rarely involve the attendance of lay parties, and, just as in trials, the orientation of the directions courtroom is towards the adjudicator and not each other. As we have noted in RTMs, lay parties when present (and lay defendants often are not) attend in a peripheral role and hence are usually physically separated from the discussion arena. The focus is on medico-legal discussion and not on communication between the lay litigants in person. Thus, joint meetings at the beginning of a mediation day are an extremely significant part of the process. They will almost certainly be the first time that the lay parties have gathered in the same room since it is said that things went wrong. If litigation is in train, years will have passed since the last meeting, in which there will have been no practical communication between former patient and clinical staff, and all emphasis will have been placed on claim, defence and challenge to each other’s positions through a medico-legal prism. The thought of sitting down across a table from each other for a conversation will seem challenging to all potential lay participants. Yet at another deeper level, it may also come as a welcome relief and an occasion to be utilised positively, and might even be seen as a manifestation of progress towards the end of their involvement in a forensic process which few lay participants will have enjoyed. 144

The joint meeting – a key encounter For the lawyers, a joint meeting (and indeed the mediation as a whole) may well generate a different mixture of feelings. Like any RTM, it is an opportunity to engage in settlement discussions directly with ‘the other side’, perhaps leading to a conclusion that will enable the file to be charged and closed, and room made on the desk for the next case. There will be the frisson of anticipated debate, and of being on one’s mettle in trying to persuade an opponent of your strength and their weakness on an occasion when all the decision-makers with due authority to respond accordingly and agree settlement will be gathered, often for the first time in a claim. There will also be less comfortable feelings: nervousness about performing and negotiating with the direct physical involvement of the lay client, still a relatively rare experience for litigation lawyers; concern about whether your risk assessment hitherto is about right, or whether your advice may be vulnerable to unexpected attack from the opposing team in debate; and discomfort about loss of control over what seems a dangerously flexible and unpredictable process to a mediator of perhaps unknown propensities, style and unquantifiable skills. Mediators too will be keyed up as they first encourage all attending a mediation to commit to attending a first joint meeting, and then seek to negotiate consensus as to its likely scope, seeking to reconcile and assuage all these usually unspoken undercurrents of hope and fear and deliver a tolerable and useful event which will – at the very least – not set the parties back, but which might end with a sense that it was worth engaging and that some sort of provisional progress has been made, or can at least be seen as achievable. This explains why careful preparation is so necessary before mediators will feel that the time is right to bring parties into a meeting with each other. Everyone needs to feel that they know what will and will not happen, what ground will and will not be covered, and that the mediator will take responsibility for running the meeting with an eye to the interests of all involved, if necessary proposing a break before the end if one or other party would welcome that in order to weigh and calibrate their response to an unexpected idea or expression of feelings. Some sensitivity to the question of perceived power imbalance is needed at this stage, if not earlier. It can be very daunting for a claimant to ‘take on’ their local hospital trust or GP practice or ‘the NHS’, all being organisations perceived as powerful by lay consumers. Critics of mediation have sometimes accused it of perpetuating that power imbalance in exposing lay claimants to a process in which they will continue to feel they are confronted by the strengths of a strong and faceless bureaucracy. In fact, experience suggests that the reverse may be true. Given a competent and trusted legal team of two or three at the claimant’s side, going into a meeting with a team of similar size representing part of the NHS or an individual clinician or clinic, will actually reduce the scale of the encounter and humanise it. The main relevance of this at this stage is for the mediator to check that there is a 145

The mediation day reasonable and unthreatening balance about the numbers in each team attending the joint meeting. This has rarely been a problem in clinical mediations, but too many trainees and interns coming to ‘experience mediation’ may diminish the willingness of lay parties to participate, and needs to be sensitively negotiated by the mediator.

The physical lay-out of an early joint meeting Much thought should be given to the physical lay-out of the joint meeting room. Unlike each party’s private room, where the mediator has little choice other than to sit wherever there is a vacant chair, the joint meeting room is under the control of the mediator, and this calls for a willingness to make it as amenable a layout as possible, if necessary by energetic furniture shifting. The ideal arrangement is to have a rectangular or oval table with the mediator sitting ‘at the head of the table’, in the middle of one of the narrow sides, probably at the end further away from the entrance door, with exactly the right number of chairs down each side for the number of people going to attend the joint meeting in each team. A  second defendant team may need to be ranged around the end opposite the mediator. Mediations with multiple claimants or defendants will need special arrangements. Thus in two party mediations (the commonest) each team will face the other across the table. While this might be felt to model confrontation in a negative way, what it actually does is to make communication easy, a vital aspiration for a first joint meeting. If parties sit side by side facing a mediator seated in the middle of the long side opposite them, they cannot easily talk to each other or watch other reactions, and the geography is redolent of the courtroom, in which parties are required to address the mediator, who will look just like a judge, and may wrongly be expected to behave like one. In clinical mediations, the whole idea of a joint meeting is for parties to address each other in discussions facilitated by the mediator. This has implications for the nature and shape of the table. Board-room style tables are sometimes clamped or even screwed down and impossible to move. But if they can be shifted so that diplomatic format with a central well between each long table side can be eliminated, or tables in a multiple-table set-up can be shifted to give just the right length for all attending, or the most comfortable width (too narrow is undesirable also) it is always worth the effort. Mediators aspire to create the best possible arrangements to minimise distractions and discomforts that might reduce the value of joint meetings, which are, as we have seen, potentially worrying enough already. It is also worth considering what is on the table. Water and glasses and even tissues are sensible accoutrements. Keeping the table top clear of telephones and speakerphones, and even the mediator’s laptop, removes any minimal barriers between those who sit round the table. 146

Conduct of the joint meeting A  logical and responsive seating plan in the mediator’s head at least (without necessarily laying out name labels as may be required for large multilateral meetings) is essential. Needs may vary with the personalities involved, but the usual broad approach is for the mediator to seat the claimant and the claimant’s spouse/supporter at the mediator’s end of the claimant side of the table, and the clinician or Trust Manager or (if neither of those are present) the NHSR/MDO case manager next to the mediator opposite the claimant. The lead lawyer will be next to them going down the table, with the rest of the legal team further down still. This promotes the lay parties to the centre of their case in a way that simply does not happen in a courtroom. They are able to face each other naturally and can talk easily to each other if they possess the courage and tenacity to do so during the meeting, this being a major objective. There may occasionally be mediations where they cannot bear to confront each other, and so their positions at the table can be staggered. But experience suggests that if they can possibly bear to face each other, even in silence, this will not ruin the encounter and may eventually contribute positively to progress. The mediator will usher in each team, usually at a pre-agreed time which has given everyone a chance to prepare and get comfortable, and will direct each team member to their allocated chair. Introductions may occur informally as everyone enters, but the mediator will always ensure that everyone identifies themselves and their role at the mediation around the table. With lay parties in either team who seem nervous about what may be involved during the joint meeting, it is wise for the mediator to show them the room in advance, explain the likely seating plan, and offer them a choice as to whether they wish to enter the room first when the meeting is convened.

Conduct of the joint meeting Mediators will take responsibility for chairing this and any subsequent joint meeting, as part of their overall responsibility for managing the whole mediation process. After introductions and a welcome, the mediator will usually set the tone and frame for both the meeting and the day to come. This is often done by reference to the implications of the mediation agreement which has just been signed by, or on behalf at least, of everyone there, including the mediator. This will usually encompass: • acknowledgement that all agree that all conversations leading towards and during the mediation are off the record – or in legal terms, ‘without prejudice’ – so far as any future litigation is concerned. No evidence admissible at a later trial will be generated by the mediation. This protection applies also to case summaries prepared in advance. Mediators may sometimes add that no party can be criticised for not settling or for leaving 147

The mediation day the mediation process for whatever reason and returning to litigation; • confirmation that all signatories have agreed to treat what is said and done during the mediation as confidential with regard to the world. It may be wise to nod at the possibility of reviewing later on how any outcome of the day might be handled, as claimants may hope that the settlement of their claim will lead to public acknowledgement of lessons learned by the NHS, either in general or by the organisation at the mediation. If that topic arises at a mediation, the mediator should point to the possibility of negotiating terms and extent of disclosure as part of the deal, but emphasising that the discussions which lead to the deal must themselves remain confidential, whether the mediation results in settlement or (almost more importantly) if it does not; • reminding parties that the mediation agreement has created a self-imposed requirement that for any outcome to be binding on the parties, whether settling the claim as a whole or only in part (including leaving an offer open for a specified time or next procedural steps in the litigation), those terms must be put in writing and signed on behalf of each party. The assumption must be that if there is no written signed agreement, no one is in any way bound by purported agreements, even though oral agreement would normally be sufficient to bind parties. It helps parties if the mediator explains why these three security measures are in place, so as to reassure them that this is not some quirky piece of mediation mysticism with no rational basis. The first two principles are intended to create a legally and evidentially safe environment for parties to explore the possibility of settlement, in a way that does no damage to their on-the-record case. They need to feel free to make proposals or concessions for the purposes of the mediation only, without the fear of having any such concessions put to them at a later trial as evidence of forensic weakness, let alone having them exposed publicly, so as to create pressure to concede. The requirement for a signed written settlement is to create as much certainty about whether, and if so what, outcomes have been agreed, minimising any risk of misunderstanding; • confirmation that the mediator’s task is to give the parties the best opportunity to explore the possibility of settlement or not, by managing the process constructively and being responsive to the needs and wishes of the parties as they emerge, but not acting as a decision-maker on the merits. The mediator may seek to normalise the possibility of asking awkward or probing questions of each party when in private with them, underlining that this can be found useful for each party when inevitably 148

Opening statements by each team involved in the process of reassessing their chances of success at trial and their risks of falling short on a given point. To raise this when everyone is together should reassure all present that if the mediator does do this, it is in no way a sign of loss of neutrality. The mediator will assure parties that this will be only done in private, within the sanctity of private meeting confidentiality, and remind parties that no question has to be answered, nor can the mediator compel any answer, but may perhaps remind them that the next neutral who might ask such questions will be the judge in open court, with power to require an answer; • confirmation of any provisional agreements as to what process is to be followed both now and later, with opening statements to be made by each team, and probably a break to assess what has been said and heard once these have been concluded, with the possibility of later joint meetings with some or all of each team, interspersed between private meetings with each team.

Opening statements by each team The order of speaking should have been agreed between the mediator and each team before the joint meeting starts, so that there are no surprises. Although it is usual for the claimant team to go first, the parties might choose to agree that the defendants speak first to express an apology and regrets about what led to the claim, so as to set a positive tone to the meeting. C made a claim over what happened when giving birth to her first child, who was overdue. She had consented to some but not other normal induction processes, and thought that a low threshold for an elective caesarean section had been agreed with the unit. She felt that the midwife and obstetrician were resistant to her approach and felt coerced to agree to induction and continued natural birth, being assured that this was possible with no risk of an emergency c/section being required. In the event an emergency c/section was necessitated. C suffered undue pain afterwards, for which DD Trust admitted breach, though denying other claims. She felt angry that she had not been listened to by the clinical team, and that it was very fortunate that both she and her child emerged without long-term damage. At the joint meeting, DD Trust’s barrister spoke first (with C’s agreement) and said that the Trust was sorry for the fact that the birth of C’s first child had been such an unhappy experience for her, accepting the breaches admitted by DD Trust but no more. Although settlement took time and a lot of discussion, this start to the meeting undoubtedly set a good tone to the day.

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The mediation day But normally the mediator will invite the claimant team to speak first: they are bringing the claim, and with lay claimants being nervous, unused to the environment, and maybe with an acute sense of power imbalance, at least initially, they may feel better if able to assert their views first, either themselves or through their advocate. It will normally be the lead lawyer who will orchestrate that team’s presentation, perhaps doing all the talking if the claimant and family prefer, or perhaps framing the contributions to be made by the lay members of that team. Decisions will also have been made prior to the mediation day, and finalised during the pre-meeting discussions, over whether the joint meeting will only seek to cover the ‘human’ aspects of the dispute, keeping the discussion of the ‘legal’ aspects for later, perhaps without the lay claimants and family being present. The human aspects will include giving lay claimants and their families the opportunity to express their feelings over what happened and how their concerns have been managed since, with apologies and reassurance of changes made being given in response by the defendants. There is much to be said for splitting these functions, and this practice has grown as experience of clinical mediations has grown. As was seen above, the defendants may have to raise delicate issues about breach of duty and especially causation, for instance that damages in respect of a patient who died by their own hand while under a Trust’s care must be reduced to account for reduced future ability to earn and reduced life expectancy because of the risk of future depression and possible future suicide. Yet where the Trust concedes some breach of duty in such a case, the family may very much value the opportunity to convey their grief, anger, fears for the future and concerns for standards at that unit which might affect the future security of other patients. The Trust may well welcome the chance to hear this, however painful it may be, and to be given the chance to respond. Occasionally the lay claimants have the desire and the fortitude to be present to hear the debate on the ‘legal’ aspects of their claim, perhaps most often when breach of duty is firmly denied and they need to understand why. A  considerable number of clinical mediations have now made such separately convened ‘human aspect’ exchanges possible, to the benefit of all, particularly to lay claimants given the chance to have their say, unrestricted by court procedures and rules of evidence, and when given permission to articulate what they feel as well as what they think. In the dependency claim described earlier, where C was claiming over the death of her husband when a voluntary in-patient at DD Trust, an acute mental health NHS Trust, the opening joint meeting did not deal with arguments over causation and any continuing suicide risk to life expectancy. Instead it gave C the opportunity to describe her multiple concerns about failures of communication between various staff members at DD Trust, and also between Trust staff and her, both 150

Opening statements by each team in the days leading up to her husband’s death three years previously and when it actually happened. She was also able to articulate her continuing concerns about the impact on the safety of other patients. *** In a claim for failure to diagnose and treat cancer before it became terminal, C felt able to use the joint meeting to say to the DD Trust team that because of their failures, C would be deprived of seeing children going to university and of later grandparenthood. The DD Trust CEO had already sent a letter of apology, but it was plain that C  and C’s spouse valued being able to express their feelings in person, and appreciated the empathetic response this invoked from DD Trust’s team across the table. Once these exchanges had occurred, C  was able to move towards a settlement of the claim. C  did not want to be given a prognosis in time terms, and it was possible to conduct the mediation process in a way that honoured C’s wishes. When the defendant team responds sensitively to the claimant, this can be well received and often leads to a resolution of the claim, as well as gratitude for the frankness and openness shown, however long after the events complained of. A very active wife and mother who suffered from chronic myasthenia gravis and was a patient of DD Trust, which was a tertiary centre, had to be treated for an acute attack over a weekend at a satellite hospital and died. CC, her husband and adult children, attended the mediation and expressed their anger and frustration that her death had been unnecessary. The consultant now in charge of the unit at DD Trust’s tertiary unit attended and admitted frankly that she had been let down and she would still have been at her husband’s side if they had not made mistakes. He gave the family his contact details in case they had any further questions which they wanted to follow up. CC expressed real gratitude that this had been said, even though it was five years after her death, and was glad to learn of changes made. The monetary claim was not concluded at the mediation, but was settled shortly afterwards. *** C  threatened proceedings against DD Trust, which had treated his wife’s cancer, alleging that they had failed to advise her properly about radiotherapy, as a result of which she had died. A mediation was convened before proceedings were issued, so that C could meet with the consultant radiologist and oncologist and ask questions about what had gone wrong at an early joint meeting. The occasion proved useful for both C and the clinicians, and a settlement was negotiated at the mediation, taking account of difficulties over causation. *** 151

The mediation day CC, the parents of a child who had been referred to DD Trust, a tertiary centre, with an obscure condition thought probably to be hereditary, and which was in the event terminal, continued to research it and discovered that the condition might have been a curable infection from an insect bite sustained when abroad. They had reported their foreign travel to DD Trust on initial referral but it had not been adequately noted. Further post mortem tests confirmed that CCs’ suggested diagnosis was right. Two consultants now responsible for that area of DD Trust’s services attended the mediation then convened, and after CC had had a full opportunity to express their feelings about the tragedy, there was a long discussion between them and the DD Trust consultants about improvements made. Settlement was negotiated at the mediation. Sometimes the encounter between claimant team and consultants will be set up later in the mediation, and may not necessarily involve lawyers. It should not be assumed that only one person speaks in each team. If the claimant’s lawyer takes the lead in speaking, and the claimant and supporting family members say nothing, the mediator will usually invite a contribution from them as well, checking whether on reflection and having seen how things have gone so far, they would like to say something. It is not unusual that an earlier decision to stay silent is changed at this moment, leading to a valuable expression of feeling. Similarly on the defendant team, the Trust or practice manager and NHSR/ MDO case handler are there as human faces of the NHS, and in the latter case, as the effective decision-maker for the day, and will be perceived as such. Brief supplemental comments from each will at least demonstrate involvement and a degree of human concern, and as was seen above, even if the Trust CEO has sent a letter of apology previously, those present can add enormous value by contributing a well-calibrated recognition of the impact of adverse events on the claimant, despite having to be coupled sometimes with a full or qualified denial of breach of duty or causation. Simply to decline to add anything when invited to speak by the mediator may not be received well on the other side of the table. It is also vital that the whole of the defendant team looks fully engaged with the claimant team at the joint meeting. Body language speaks volumes, and lack of interest can very easily be perceived across the table by inattention or distraction expressed in posture or eye contact. Occasionally, a Trust manager will find things to say and do intuitively which make a major difference to the atmosphere of the mediation and probably contribute significantly to a sense of progress, even though the milieu is unfamiliar. Returning to an illustration given earlier: In the mediation of claims by CC, a cohort of breast cancer victims whose histology was mishandled, the DD  Trust claims manager agreed to meet CC, their partners and their solicitor (but 152

Making or declining to make offers at a first joint meeting not barrister) in a later joint meeting chaired by the mediator. She answered questions openly, acknowledging the upset and fear that the mishandling had caused for CC (without discussing whether this was technically negligent of the Trust). As the meeting ended, she asked the mediator whether she could shake their hands. She then went round to speak to each couple personally, shake their hands and listen to any private concerns. She then agreed to meet two of the couples in a separate private meeting where those claimants requested this. Her friendly and open approach undoubtedly encouraged CC to find a way towards settlement, and also towards repairing the fractured relationship between these claimants and their local cancer treatment centre, and perhaps the NHS in general. These exchanges are rarely ever possible at RTMs and, as noted in Chapter 6, lawyers as well as their clients may be reluctant to let them take place. The value of such exchanges can really only be appreciated once they have been experienced, and mediators need to be persuasive about their benefits. Where such meetings do not take place, mediators often find parties much less open to generate and agree settlement terms. The opposition remains a faceless opposition, with all the problems of power imbalance and assumptions of recalcitrance unaltered, whereas meeting a team of individuals and engaging with them, even briefly, very often scales down the sense of conflict and generates willingness to seek out mutually acceptable solutions.

Making or declining to make offers at a first joint meeting The first joint meeting is very rarely the right moment to make a first monetary offer in a clinical negligence claim. One of the main purposes of convening a mediation at all is to explore the value of non-monetary issues and outcomes, and until there has been some debate about those, it will normally be premature to offer a specific sum for monetary compensation alone. Furthermore, there is a considerable risk that an offer made before the mediator has had any opportunity to assess and report (subject to confidentiality) what kind of expectations exist in each room as to the broad area for possible settlement will misfire. A badly-judged offer can set attitudes back just as seriously as a badly-judged attitude or expression. Later in the process, the mediator will have a much better impression as to what any party might consider either insulting or credible, and may be free to give guidance over what might or might not be taken seriously in another room. This is one of the most useful services that a mediator can offer. If asked whether this would be appropriate in pre-meetings, the mediator will almost always discourage that step. Its only possible value is to show that the party proposing a figure is here in earnest. Mediations have often been preceded by settlement moves of some kind, whether a failed RTM, 153

The mediation day or the making of Part 36 offers by claimant or defendant. There is an unspoken expectation that any unwithdrawn offer made by any party sets the parameter for settlement discussions at the mediation unless there has been a change in law or practice which materially affects valuation, such as a change in the discount rate. So if each side has made an informal or formal Part 36 offer recently, the debate is likely to concentrate on whether there is a number between those upper and lower limits which is acceptable. What can set matters back badly is a formal withdrawal of an earlier offer as a demonstration of negotiating toughness. A mediator should be brave enough to intervene to discourage any such step before it is taken. A  good way of showing positive intent at the joint meeting which falls short of offering a specific number, yet still maintains room for manoeuvre in the light of what else may emerge, is for a defendant to say that an offer of compensation (at all, or higher than before, depending on the facts) will be made later during the mediation. This is especially helpful if breach or causation or a certain head of damage have been firmly denied up to the mediation. It might also be right for a claimant or defendant to confirm specifically that a previous offer whether formal or informal is that party’s starting-point for later discussion. But the usual course is for offers not to be made at the first joint meeting, or even flagged, as each party expects to say and hear things which might impinge upon the risk analysis needed in each room before a figure can safely be proposed. The converse applies equally in a case where the defendants have signalled firmly that they do not visualise making an offer at any stage, whether from the start or as a specific warning immediately prior to the mediation. This is discussed in some detail above, as it needs careful thought and preparation prior to the mediation. But again, the best approach is to leave options open, and in particular to signal willingness to listen and perhaps even openness to being persuaded to a change of mind. This, coupled with every effort to explore and offer valued non-monetary benefits to claimants to moderate disappointment that no money may be forthcoming, gives settlement a reasonable chance even in these unpromising circumstances.

Ending a joint meeting Once exchanges have taken place, it will usually be the mediator who proposes a break so that teams can return to their private rooms and take stock. It is a matter of judgement for the mediator to assess whether and when enough has been achieved (or, rarely, if parties cannot bear to be together any longer). In doing so, the mediator will usually suggest a timetable for next steps. These might be: • (where there are several defendants) a continuation of the joint meeting without the claimant team, to explore the extent, if any, of common ground between the defendants; 154

Exploring options and risks • to convene a meeting of lay parties, with or without lawyers in attendance, but with a view to further discussion of the ‘human aspects’; •

to convene a joint meeting of lawyers after an interval to discuss forensic issues;

• to come to see each team in private after an interval to assess reactions to what has happened so far, and discuss next steps in private, indicating which party will be visited first. All process options should be laid out by the mediator in a way which invites everyone to comment and question them, so that no one feels dragooned into a meeting against their inclination or without proper time to prepare for it. Again, the only step likely to be discouraged by the mediator at this point is the making of a monetary offer before the next phase of the mediation has been completed.

Working with multiple parties There are both conceptual and practical problems where there are multiple parties with separate representation. Claimants may be estranged or have different interests or prospects of success, and wish to work separately. Defendants may have different indemnifiers and also have different interests or prospects of success. This topic is examined in detail in Chapter 8. The obvious practical problem is that the mediator cannot be in more than one room at once, so there will be far more ‘down time’ for each party, which can cause frustration, and needs to be considered by the mediator. It may even require a degree of timetabling not normally necessary in bilateral claims. Even if multiple parties, particularly defendants in this instance, appear to have conflicting interests, it is often useful to ask them to meet together in a separate joint meeting, without the claimant team present, so that they can see whether at least they might discuss issues in which they have a joint interest, for instance in challenging the claimant’s case on quantum, over which they may find it easy to co-operate and co-ordinate their response. They may also choose to negotiate direct with each other in terms of exploring whether they might agree an apportionment between themselves, so that they can present a united front to the claimant team. This may still need the mediator’s help.

Exploring options and risks The strategy for both mediator and the parties during the period immediately following the first joint meeting (or in those rare mediations where there is no joint meeting, from the beginning of the mediation) is to ensure that the parties feel that they have all the information 155

The mediation day available for them to assess and meet their extra-legal needs, and also to assess their prospects in relation to the legal aspects of the dispute. Some of this will be obtained at the first joint meeting, while the rest can be accumulated through later topic-specific joint meetings, or conveyed with due authority by the mediator moving from room to room. Exchanges will include delivery of new information, opinions as to the relevance and force of factual, documentary and expert evidence, and views on what all these mean in the context of law and procedure. Each party will be very ready to assert the strengths of their case, both at joint meetings in debate with the other parties and when meeting the mediator privately. They will hope that the mediator understands those strengths and will be able to convincingly test out other parties in private meetings with them, based on the mediator‘s having grasped those strengths. When discussing one party’s case with the others in private, the mediator will be doing so when imbued with the status of a neutral. Psychologists suggest that ideas conveyed by a neutral can catch the listener’s attention more readily, thus avoiding the ‘reactive devaluation’ of the same ideas if these were presented by an adversary. However, it is also an important part of the mediator’s job to persuade each party to be honest and realistic about any weaknesses or risks that their case faces. If parties do not attend to the chances of not getting what they seek in terms of compensation, it is unlikely that there will be a meeting of minds. Each team may be resistant to doing this. The legal team may be reluctant to be seen by the client to depreciate the value of advice previously given on which the claim is based. The client may have unrealistic expectations or ambitions which may be painful or difficult for the legal team to talk down. The mediator may be able to help with both those problems if invited to do so. But the mediator should encourage parties to be realistic, at least in private. When it comes to such discussions within a team, it may be best for the mediator to leave them to it, without being there to witness what might be a painful shift of thinking. This review of strengths and weaknesses can be relatively brief, especially when there are experienced legal teams in each room. Mediators may be able to bring fresh insights to each team’s own appraisal by raising questions but, however well prepared, they inevitably know far less about the detail of any case than the parties themselves. They must therefore rely on each team to know and be open about the positive and negative sides to their case, based on that detailed knowledge. It will be for the mediator to keep under review whether the parties seem ready to turn their ideas, as modified by exchanges during this phase of the mediation, into their first settlement proposals. There will be some cases where several joint and private meetings with each team will be needed, sometimes spread over one or two hours, before parties are ready to exchange bids. 156

Later process choices

Later process choices After an initial joint meeting, the mediation process usually takes the form of a mixture of private and joint meetings. Parties return to their separate private rooms to review what has emerged from the exchanges at the joint meeting, and the mediator will give them some time on their own for that to happen at a comfortable pace. It is very rare in clinical claims for the whole mediation to be conducted in joint session. Quite often the lay parties will spend the rest of the mediation in their private room with their legal team, but sometimes there will be a further joint meeting with everyone or a specially convened meeting between the claimant or family and lay members of the defendant team with the mediator chairing it, but without lawyers present. This may be to look further together at extra-legal nonmonetary concerns and to make the restoration of direct communication possible. There are a number of examples of such meetings scattered throughout the case studies in this book. Here are two more: C claimed for bereavement and as secondary victim as parent of X aged 9, who had (probably) died as a result of an asthma attack provoked or worsened by anaphylactic shock for which DD Trust had not prescribed an adrenalin injector. The claim was for well over £100,000. Breach and causation were in issue, as was the status and quantum of C as a secondary victim. DD Trust proposed a meeting with C’s family to discuss their asthma and anaphylaxis care to which they responded positively. When the parties were still substantially apart, the mediator asked each to tell him confidentially whether a figure of £x was acceptable. Both said no, but each then exchanged much closer bids. The mediator suggested another figure in between, which was accepted by both. *** C sued DD Care, a contracted provider of cottage hospital care to the NHS, for unnecessary suffering endured by C’s husband when admitted for terminal care which proved to be wholly inadequate. C felt the hospital staff had persuaded her to reassure her husband that he was in the right place when she felt strongly that it was a disaster, with inadequate pain relief and inadequate attention given. Two lengthy very positive tearful meetings took place between C, her daughter and DD Care senior staff (one without lawyers) which gave considerable satisfaction to both parties. A settlement at £2,000 plus costs was agreed. Lawyers may be reluctant to allow their clients to participate in a meeting without them, but so long as the purpose of the meeting is broadly nonlegal and their clients are willing to participate, there should not be a problem. More often there will be further joint meetings between the legal teams to exchange views as to each other’s strengths and assert 157

The mediation day the other’s weaknesses, so as to generate further risk reassessment in private. Such lawyers’ meetings spare the lay parties from any adverse reaction to the reduction of their own personal tragedy or disaster into legal concepts and challenges. A balance has to be struck about the value of exposing claimants and healthcare professionals to the rigour of legal analysis, so that they can see what a trial might involve, and the possible upset and distress that hearing such a debate might unhelpfully produce. Mediators are often surprised at the resilience of lay participants over such matters, although it is always as well for the mediator to name the problem in advance and test out how people think, giving them options to engage or not and reminding them of the flexibility of the process. Also, mediators should always check with the lay clients that they are content for their representatives to meet the opposition without them: it is, after all, their case, and mediation is supposed to bring them back to the centre of it. Here is a case study with a mix of meetings to suit each stage: C  sued DD Trust over the death of C’s spouse, who had suffered severe ascites (fluid retention) consequent on an undiagnosed pancreatic condition. At the mediation just over four years from the death, C  and their daughter (a lawyer, but for the purposes of the mediation a party) articulated their concerns about DD Trust’s perceived shortcomings in care, but also their own anger and guilt about feeling they had let the deceased down by not pressing for further clinical intervention. These were responded to by a consultant from DD Trust. Later there was a separate joint meeting between lawyers to discuss legal issues, and a further joint meeting with all, at which the consultant answered additional questions and set out what would be taken back to DD Trust as learning points. After two bids per side, the claim was settled. Barristers are used also to the idea of having ‘counsel-to-counsel’ meetings. While the mediator cannot prevent these from taking place, it is always wise to try to persuade counsel to let the mediator sit in on them, even if the mediator contributes nothing to their exchanges, so that the mediator can keep a sense of the direction in which discussions are flowing without the need for each counsel having to report back to the mediator as well as to their own client.

Mediators as evaluators? Mediators in England and Wales normally operate on the basis that they facilitate the mediation process and have no role as advisers of the parties. CEDR’s current standard Model Mediation Agreement (adopted by many mediators) actually states that ‘the Parties understand that the Mediator does not give legal advice’1. Mediator neutrality is 1 See para 6 of the CEDR Model Agreement in Appendix A.

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Converting thinking into proposals fundamental to the trust which parties need to repose in them, and there is a significant risk that such trust will be undermined if the mediator is perceived as having espoused one side’s view of the claim. Certainty in giving accurate legal advice is always a challenge for advisers, and they may actually welcome having their position buttressed or even challenged by a mediator invited to be robust and independently evaluate a party’s chances of success. But this would be to usurp the role of each lawyer as the adviser with a professional duty to look after the partisan interests of each client, and it would probably be based on less than full knowledge of the circumstances and the evidence. However welcome another view might be to share the responsibility of advising soundly, each legal team has to shoulder that responsibility itself, without enlisting the mediator’s specific views. This is not to say that the mediator cannot be of some help in testing out the reality of each party’s position, as long as that is done in private and with a cautious eye on not stepping over the mark of neutrality. A mediator can simulate the approach of a judge, as also a neutral recently brought into a case and who may exercise their own curiosity and common sense about how a proposition or piece of evidence looks, and ask a question about it. Judges, of course, will do so in open court in front of the other party, and can compel a reply. Mediators who ask awkward questions will (or certainly should only) do so in private and cannot compel a reply. Such questions as ‘how many times out of ten do you think a judge will find in your favour on that point?’ do not call for an immediate answer, and the wise mediator will give the legal team space and time to consider what the answer might be and indeed whether to reply to the mediator in private at all. To have been asked such a question at all may help to ground that party’s view of their prospects of success or the risks they face, and nothing will have been given away to an opponent. As long as each party realises, and indeed believes, that the mediator will be asking such probing questions of all parties, trust and neutrality should remain intact.

Converting thinking into proposals Parties are always ready to assert their strengths to each other direct and through the mediator. They may even be persuaded to debate their weaknesses, though almost never face-to-face, and rarely even with the mediator in privacy. But at some point these ideas have to be synthesised into proposals if settlement is at least to be explored, even if not achieved. This moment can feel dangerous and exposing to both claimants and defendants, despite the fact that any bid made within a mediation is firmly off the record and cannot be used against that party in later litigation, even in relation to costs liabilities, unlike Part 36 offers. At that admittedly privileged moment, a party who makes a bid is signalling willingness to discount their formally-asserted case upwards or downwards in a way that concedes less than full certainty about its strengths. The first thing 159

The mediation day that the receiving party will do is to contrast the proposal with the full value of the claim or defence as asserted and try to draw conclusions from the difference between the two. The bidder will fear that the greater the difference, the more comfort may be felt by the party receiving the bid. Mediators have a proper role in trying to reassure parties that bids within mediations can be made safely, and are necessary and worth making to evoke a response from the other room, if possible, otherwise a settlement may never be reached. Reminders can be given that any bid is permanently off the record for all practical purposes, and the only theoretical risk with any particular bid is that it may be accepted without a counter-bid. Even were this to happen, nothing is binding unless written down and signed. Sometimes it is difficult to persuade one or other party to bid first. In one sense it does not matter, as all bids are entirely off the record and unless a written settlement is achieved, neither side is bound by any bid. But the rhythm of bargaining does tend to dictate party expectations over this. Previous Part 36 offers made by either or both parties will probably set the parameters for the monetary discussions at the mediation. The fact that the last Part 36 offer before the mediation was convened was made by the defendant may mean that the defendant will ask the claimant to make the next (first) offer at the mediation. If both have made Part 36 offers to each other before the mediation, then either may suggest making the first offer on the mediation day. If there have been no previous offers, it is likely that both sides will want the defendant to bid first. Similarly, the last party to serve a schedule of losses or a counter-schedule for the purposes of the mediation may try to persuade the other to bid first at the mediation as a response to that schedule or counter-schedule. In practice, bidding once started is always undertaken very cautiously, and it is normal for there to be several bids per side before the parties find a way to close the gap and reach agreement, or decide that the gap is too wide to close. It is extremely rare for a claim to be settled on the basis of the opening bid by the payer, unless for some reason the payer has decided to make their best offer in order not to demean or devalue very positive work done in relation to non-monetary aspects of the dispute. The mediator might possibly suggest such a move on the basis of impressions formed about the mood in the recipient room and certainly a party contemplating such a step would be wise to consult carefully with the mediator for advice as to its wisdom, based on such impressions. This kind of intelligence about what might and might not work is one of the unique contributions that mediators can make to enhancing negotiations. RTMs offer no comparable additional level of advice: negotiation has to be face-to-face between lead lawyers. One-off final offers are rare, but here are two instances in which they were made and accepted. The first illustration has already been summarised earlier for a different purpose. 160

Converting thinking into proposals In a claim for psychological harm over a still-birth, considerable value was derived by the parents CC from a private meeting with DD Trust, who reassured them that they had not been placed on a blacklist for making trouble or a claim, offered direct contact details in case they required future care, and expressed care and concern over what had happened and how they had improved procedures as a result. The mediator suggested to DD Trust team privately that to embark upon an undignified series of bids moving slowly and reluctantly up to a final figure might be badly received and undo the good work achieved, and that a best offer made at the outset conveyed on the basis that DD Trust wanted to avoid such a disrespectful haggle for that very reason could work. They decided to take that course and, after a considerable discussion on their own, CC accepted it. *** At a mediation convened five years after the death of their adult son after elective surgery at a private hospital, the parents and the operating surgeon went through the hospital notes line by line for several hours in a very extended joint meeting, to enable the surgeon to explain his decisions and to explain what changes he had made to his practice in such procedures as a result. The parents derived comfort from the fact that these changes meant that others would not be exposed to similar risks in the future. No claim in negligence was made, although contractual compensation was theoretically payable by the hospital for mishandled complaints. Once the information exchange had been completed to the satisfaction of the parents, the mediator suggested privately to the defendant team that a single generous offer be made, capable of quick acceptance so as not to undermine what had been achieved. This was done and it was accepted. With the norm being several bids per side, often three bids per team, parties normally move cautiously towards each other, often taking an appreciable time to process a bid received and to decide how to respond. During this phase of the mediation the mediator may often simply bring a bid, check whether its terms are understood, and leave the party to discuss it privately, returning to the bidding team to report that the offer has been delivered and is being reviewed. The mediator will then wait to be called into the recipient team to clarify questions or to discuss their considered response, whether a counter-offer or plain rejection. While one of the most frequently used ways of conveying bids between parties is for the mediator to be asked to do so, this is not always what happens. Mediators may actually offer options and ascertain which method is preferred by the parties. Sometimes lawyers wish to convene to convey offers or counter-offers across the table (rather like RTMs), 161

The mediation day perhaps wishing to assess the reaction of the recipient, or, in a complex case, to ensure that the offer is framed precisely with the desired nuance and tone, and any conditions attached to it clear. A  unique feature of mediations is the possibility for parties to give confidential bids to the mediator, who can then appreciate what the current gap is without its being mutually disclosed. This can help with fears that a bid might be over-interpreted as a sign of weakness, or to ease parties into closing a gap that looks too intractable. The mediator may then seek permission to characterise the gap (eg ‘you are now both talking in terms of a six-figure sum instead of the claimant at seven figure sums and the defendant at five figure sums’) so that there is sense of having provisionally at least (as none of this is binding or even tied to specific figures) arrived on the same playing-field, albeit on opposite sides, and that further exploration and negotiation might be worthwhile. Gaps can seem frighteningly and irreducibly wide at the start of a mediation and yet the application of risk analysis by each team can rapidly close huge gaps. Some judges sadly have not grasped this when deciding whether mediation has any prospect of success. In Swain Mason v Mills & Reeve2, a professional indemnity claim against solicitors, Davis LJ said: ‘At all stages the parties were in reality a hundred miles apart. The claimants had sought £750,000 and costs by a Part 36 offer served shortly before the first trial. The defendants’ best offer had never been more than a “drop hands” approach (before proceedings). Its assessment of the strength – or rather weakness – of the claimant’s pleaded case on breach of duty never altered’. He went on: ‘it is difficult to see, given the circumstances, how a mediation could have had reasonable prospects of success’. Here is just one clinical claim where the pre-mediation gap in a clinical claim was over £1,500,000 (twice the gap in Swain): C claimed against DD Trust for temporary paralysis and depression caused by symphysis pubis diastasis allegedly caused by midwife intervention during the birth of her first child. Breach of duty was uncertain and causation in issue. Trial was in six weeks. Before the mediation C claimed well over seven figures and DD Trust offered a five-figure sum. At the mediation both parties agreed to negotiate towards a six-figure sum. Each first bid were C: was of six-figures, each moving several hundred thousand pounds closer. Agreement was reached after several bids by each side at somewhat under £500,000. 2 [2012] EWCA Civ 498.

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Converting thinking into proposals It is simply impossible to predict whether a gap is too large to close. Experienced mediators will all have seen gaps closed much bigger that the one in Swain, even in clinical claims. Davis LJ’s comment produced a range of reactions from mediators ranging from mirth through puzzlement to distress that a judge should be so mistaken, and indeed so willing to accept the assertion that the case could not be settled, especially as it came from an advocate who could not possibly admit any weakness in case a costs sanction was imposed. No party is going to admit weakness on the record, but they might send a signal of willingness to look at compromise, so long as that signal is sent and received in circumstances where it cannot be used against them if the approach is rejected. The mediator should never press either party to give their ‘bottom line’, in case this somehow forces them to solidify a position which might still be subject to movement if there were a reciprocal move from the other party. When it appears that the end of each party’s willingness to bid further is approaching, either may choose to characterise a bid as their last offer for today, and insist that this description is conveyed to the other party with the bid. Not until you have been asked to do this should such an indication be conveyed. Parties may threaten to make a Part 36 offer immediately after the mediation to buttress the seriousness of the offer they are making during it. Because of the formalities required and the fact that parties often want thinking time to pitch an offer well, Part 36 offers are not actually made at the mediation itself. The party threatening to make it may decline to say whether what they are bidding today will be the figure formally offered tomorrow, whether the same or more. Sometimes they may explicitly threaten to make a Part 36 offer of less than what is proposed ‘for the purposes of today only’. Recipients of such offers must then decide whether to take the risk of acceptance or not. Mediators can also use techniques to close seemingly deadlocked differences, by making what is usually called a ‘mediator proposal’, asking both teams the same hypothetical question in private, namely: ‘If I had been able to tell you that the other team would settle for £x (and any other relevant terms) would you say yes or no to that?’ It is agreed that each party’s yes/no answer to that question is conveyed confidentially to the mediator, though if both parties say yes, agreement is assumed and may be disclosed and settlement finalised at the proposed figure. If either or both parties say no, then the mediator reports that the process did not lead to agreement and invites each party to decide whether they want to make any alternative proposals to the other. Agreement quite often emerges even then after further negotiation. The same technique can be used during follow-up contact by the mediator after a mediation has failed to achieve settlement. This again is a process that is only possible because of the presence of a mediator to take confidential bids and 163

The mediation day manage their consequences, adding value to the merely positional bidding face-to-face characteristic of an RTM. It should be emphasised that the mediator takes responsibility for suggesting £x, and that this number has nothing to do with the merits of either side’s case. £x is a number which the mediator, having heard the negotiation and what each party thinks in their private rooms, thinks might just possibly be acceptable to both parties in circumstances when they are reluctant to reveal to each other that they might be prepared to make one more move. The mediator is not evaluating merits or on the likelihood of a judge awarding £x at trial: the mediator is simply exploring whether a different number might settle the case, again leaving the parties free to reject it and if so inclined to return to litigation. A  ‘mediator proposal’ may not be accepted by both sides, or indeed by either side, but it often provokes further bargaining in its vicinity which leads swiftly to settlement: C was a voluntary patient at DD Trust and drowned in a locked bathroom, because staff were insufficiently unaware of C’s suicide risk level. The claim was nearly £1 million. Pre-mediation Part 36 offers by each were not accepted. After several five-figure bids, the mediation ended with a £25,000 gap. After the mediation, the mediator asked each for their confidential response to his compromise figure of £x. Both parties rejected £x, but DD Trust then decided to accept C’s last mediation offer (slightly more than the mediator’s proposal figure). A  familiar psychological underpinning quite often encountered in bidding in clinical mediations is the question of whose is the last bid that is accepted. Claimants often appreciate the fact that a claim settles at a number which they proposed, rather than feeling compelled to accept the defendant’s last bid. Of course if neither party is willing to move again to close a continuing gap, the mediator proposal technique described above relieves both parties from being required or forced to accept a bid from the other, as the number to be considered derives from the mediator. ‘Magic numbers’ are also worth a comment. When a party gets close to an obvious transition number like £100,000 or £200,000, settlement on either side of that transition may take on (perhaps) disproportionately importance to each side. One or other party has to persuade themselves to concede a deal at one or other side of it. The same may apply to the size of numbers. Mediators may find themselves exploring whether a bid might have five, six or seven digits, all in an effort to see if the parties will ease themselves on to the same ‘playing-field’, to use a well-worn metaphor in bargaining. There may be ancillary adjustments to damages that assist with this process. For instance if interim payments have been made, or there is a significant sum repayable to the Compensation Recovery Unit (CRU) by way of benefits already paid, whether £200,000 is net or gross of interim payments or CRU might help the parties to close the gap between them. Here is an example where C did not attain a ‘magic number’: 164

Converting thinking into proposals C sued DD Trust in negligence and under the ECHR, Article 2 for herself and her three children over the death by suicide of her husband H in prison, where DD Trust had been responsible for his care. Breach of duty was admitted, but causation and quantum were disputed, on the basis that C and H would not have resumed living together on release and H would not have supported the family. At the opening joint meeting, DD Trust explained changes in procedure put in place since H’s death, which were much appreciated, as were the answers to supplemental questions raised later. DD Trust had made a Part 36 offer of £75,000 well before the mediation and they first repeated this sum as of the mediation day, thus agreeing to meet all C’s costs since their earlier offer, including all C’s mediation costs. C argued for a sum well into six figures and the mediator sought to manage C’s hopes and expectations by warning that such an increase appeared unlikely to be offered. DD Trust said they would make one more offer that day, and moved to a higher five-figure sum plus costs, warning that if not acceptable they would rely on what they felt was their very protective Part 36 offer. They declined to consider two different six figure sums proposed by C. The claim settled at DD Trust’s final offer. This cannot become an exhaustive treatise on how bargaining is conducted at mediations, as there are countless permutations in the way parties bid to each other as managed by a mediator. The fundamental point to remember, whether a mediator or a party, is that any bid is essentially not just a number but a message, with ramifications much wider than a mere number. Such messages can, in clinical claims, often be enhanced if proper attention is given to the value of non-monetary extra-legal outcomes unavailable from a judge. Perhaps one of the most useful jobs of a mediator is to find ways to keep negotiations going, and always to hope that perseverance may produce a way forward, even where deadlock seems entrenched. Chapter 9 deals more fully with issues relating to final settlement and to the perennially tricky issue of dealing with the legal costs of the claim as part of the terms of settlement. Meanwhile, Chapter 8 deals with the special problems of cases with multiple parties.

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Chapter 8

Mediating clinical claims with multiple parties

Extra complications inevitably arise when there are multiple parties, both for those representing them and for the mediator. This chapter examines some of the practical difficulties that arise in such cases, firstly (and more straightforwardly) where there are multiple defendants, and then (requiring rather more planning and thought) where there are multiple claimants.

Multiple defendants Most clinical claims (and therefore most mediations) involve a dispute between a patient or a deceased or incapacitated patient’s family on the one hand, and either an identified NHS  Trust, or a GP, dental practice, or a privately engaged clinician or private clinic, backed by a Medical Defence Organisation (MDO), on the other. As already noted, with Crown indemnity in place since 1990 for claims against NHS hospitals, there is no longer any need to differentiate between doctors, nurses, hospital pharmacists, other hospital staff and even hospital management systems when suing an NHS Trust. The Trust accepts legal responsibility for all possible liabilities that may be attributed to its staff and its systems. Most cases will therefore be mediated with two parties – with and between a claimant and a defendant team. But there will be cases where there is more than one element of damage allegedly caused by different actors in successive breaches of duty. Sometimes there may have been referrals down the NHS chain from a GP to a primary care hospital to a secondary or tertiary care centre, with maybe a stage involving private healthcare, for instance. An ambulance trust may be alleged to have failed to look appropriately after a patient from initial emergency to hospital, or when in transit between any of those bodies. A  patient may have been treated externally by a private clinic under the NHS umbrella, making the NHS  Commissioning Board a separate defendant. Even so, as long as both or all defendants are NHS  bodies, the defendants’ cases will all be handled by NHS  Resolution (NHSR), usually with the same legal representation. NHSR will reject or pay claims on behalf of either or all of the Trusts named as defendants. The claimant will have to establish a valid claim against at least one of the named Trusts, but will not be concerned too much about apportionment of blame as 167

Mediating clinical claims with multiple parties between them if both concede liability. To succeed at all, a claimant must bring home a claim against one of the bodies underwritten by NHSR. However, this does not affect the rules about discontinuance or costs, under which a claimant who discontinues or loses a claim against a defendant or against one of several defendants will still normally be liable for that successful defendant’s costs of defending the claim up to the discontinuance, unless protected by the one-way costs shifting rule1. If the claimant misguidedly sued one Trust and later decides not to pursue the claim against them, or loses at trial, the fact that the claim succeeds against another Trust in the same action does not necessarily protect the claimant from adverse costs consequences against the Trust injudiciously sued. Even where qualified one-way costs shifting would normally confer automatic protection, if a valid offer to accept discontinuance or a defendant’s Part 36 offer has been made more than 21 days previously, costs problems may still arise. A family was advised to initiate Human Rights Act proceedings against a community mental health NHS Trust and an acute NHS Trust over the death of their 14-year-old child when an in-patient of the acute Trust, but who had been referred by the community Trust before he died. The two Trusts were represented by the same law firm instructed by NHSR. The acute Trust was ready to settle, but the community Trust felt it was not in any way to blame and sought settlement of their costs on proposed discontinuance. Agreement over this was difficult to negotiate. If the claimant seeks to blame different defendants, one of whom is not an NHS  Trust (for instance a GP or a clinician working privately or a private clinic), each will have separate indemnifiers unless they happen to have been covered by the same MDO. It may then be that two or three defendants will be separately represented within the proceedings and consequently at a mediation. Problems can, however, arise where a claimant proceeds against several defendants with different representation. C consulted a local GP practice (D1 and D4 were the relevant doctors) about back pain. Blood tests were ordered and found to be normal. D1 also referred C for physiotherapy. Chest X-rays were also ordered. On a second visit C was referred by D4 to a rheumatologist (D2) for a private consultation, who ordered more tests and fixed a follow-up appointment for review and to order an MRI scan if needed. Shortly before the review, C  complained of continued pain at the local A&E department at DD3 Trust, but was reassured by a doctor there in the light of the impending review by the rheumatologist. However C failed to attend the review, going abroad, and on returning four 1 Subject to qualified one-way costs shifting: see Chapter 9.

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Multiple defendants months later C  had become irreversibly paralysed as a result of spinal TB which an MRI scan would have revealed. C’s condition had remained curable for several months after the missed review appointment. At the mediation, and the subsequent trial, D1 and D4 were backed by one MDO, the rheumatologist D2 by another and the DD3 Trust by NHSR. Each had a different basis for resisting breach of duty, although there was some liaison over causation. There were no Part 20 claims made between any of the defendants: each stood alone in defending the claim formulated against them individually. As liability was so firmly denied by all defendants there was little enthusiasm for discussing C’s case on quantum. The mediation did not lead to settlement. At trial D1 was found liable and D2, DD3 Trust and D4 were exonerated. This might incidentally have been a mediation where bringing each party’s experts to debate with each other in a ‘goldfish bowl’ exercise might have lessened the chances of a hugely expensive trial, at which in the event one defendant was ultimately found liable to C. Probably the high potential value of the claim made the price of buying up the risk of losing too high to be worth paying. There are usually discussions between the NHS and MDOs and other indemnifiers in claims with mixed defendants, often taken in accordance with Memoranda of Understanding between them. The mediator will not normally be troubled with the details of these. Their net effect is that multiple defendants will not normally seek to blame each other during proceedings against them, and will leave it to the claimant to succeed against any or all of the defendants sued. This differs from commercial claims, where differently insured defendants may well try to blame each other or even bring new third parties into proceedings started by the claimant2. But if a defendant is successful in their defence of a clinical claim, because of qualified one-way costs shifting3, they will not recover their costs against the claimant who lost unless the claimant failed to beat a Part 36 offer made by that defendant, when the costs recovery will be limited to the amount of damages awarded to the claimant. So if the defendant always hoped to defeat the claim entirely and did not make a Part 36 offer, that defendant will have to bear their own legal costs in any event, though they have escaped liability for the claimant’s costs. A losing defendant will

2 They can do so by issuing and serving a Part 20 or Third Party Notice (named after the relevant CPR provision) on a fellow defendant, or even bringing one in afresh. This may be done whether or not the claimant chose to sue those third parties, to try to seek an indemnity or contribution from another defendant, sometimes on the basis of a contract or because they assert that the other person is the real culprit. A defendant in such cases who fails to establish a claim asserted against another defendant may be ordered to pay the costs of all the successful defendants as well as the claimant. This rarely arises in clinical claims. 3 This rule applies to clinical claims issued since April 2013, but not to older ones. The rule is explained more fully in Chapter 9.

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Mediating clinical claims with multiple parties not usually be ordered to pay another successful defendant’s costs unless a positive case was mounted against that co-defendant. The mediator will have to work at getting apportionments agreed between separately represented defendants, as in the following cases: C required an abdominal operation in DD3’s private clinic, which was to be performed laparoscopically (ie  by ‘keyhole’ surgery) by D1 as surgeon with D2 as anaesthetist, both working on a private basis. Some appropriate equipment was found to be unavailable during the operation, so that D1 had to complete surgery through a conventional open incision. The enlarged wound became seriously infected and C suffered a wound dehiscence with serious sequelae. D1, D2 and DD3 blamed each other and could not agree on how to apportion liability to C. The mediation was held shortly before a trial to determine liability and apportionment only. At the first joint meeting with C’s team present, D1 (the surgeon) offered to contribute 33%; D2 (the anaesthetist) 20%; and DD3 (the clinic) 10%, ie not totalling 100%, although C  was likely to recover in full from a combination of the defendants. The mediator worked separately and jointly with the defendants. D2 and DD3 offered to bear 20% each, if D1 would bear 60%, but this was refused by D1, who would not bear more than 50%. The mediator proposed D1 55%, with D2 and DD3 splitting the balance equally. Final agreement was reached at D1: 50%, D2 and DD3 25% each. The defendants tried to settle quantum by offering £1 million plus costs, but C would not go below just under £3 million. The liability trial was vacated and quantum left for later discussion or trial. *** C’s spouse was admitted to DD2, a private clinic, by D1, a consultant psychiatrist, but committed suicide less than 24 hours later. C made a dependency claim in negligence against D1 and DD2. Breach of duty and causation were in dispute. C and D1 met and had a useful conversation at a personal level, despite the firm stance taken by D1’s indemnifiers on denial of breach of duty. After private and joint discussions between QCs for each party, DD2 offered damages of £100,000 and to pay the costs of C’s claim against DD2 (but not as between C  and D1). D1 denied liability and sought costs from C. C  indicated willingness to accept £400,000 plus C’s costs of both claims. D1 would go no further than agreeing no order as to costs as between C  and D1. DD2 offered £275,000 inclusive of costs. C offered to accept £350,000 inclusive of costs. DD2 said no and suggested that C claimed any top-up from D1. D1 refused to move further and left, having accepted no order as to costs between C and D1. DD2 made a final offer of £300,000 inclusive of costs, which was accepted.

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Multiple defendants This may require the mediator to be fairly robust with separate defendants if they show a lack of enthusiasm for taking a mutually co-operative approach to a claim. C was prescribed a drug by a practice nurse D1 on the suggestion of a consultant employed by DD2 Trust. C suffered an adverse reaction to the drug and dosage prescribed, resulting in impaired sight, despite treatment by DD3 Trust. D1 was represented by an indemnifier and DD2 and DD3 NHS Trusts by NHSR with a unified legal team. D1 made a low five-figure offer to C, on the basis of a very limited exposure to liability, which D1 argued should lie with DD3 Trust. This was unacceptable to C. DD2 Trust and DD3 Trust did not accept liability at all and were very reluctant to make any offer to C. C’s team sent signals of willingness to reduce the overall claim to a low six-figure sum. None of the defendant seemed inclined to move. The mediator firmly reminded each defendant separately that C had moved a very long way, whereas they had concentrated on each other, rather than on C’s flexibility. It would take little time to spend the difference between them on the costs of litigating that difference. The defendants consulted together privately and agreed to C’s offer without disclosing the three-way apportionment to C or the mediator. Defendants may seek to argue that a fellow defendant is wholly or substantially to blame, rather than themselves, but even so all defendants may unite over the valuation of the claim and work together to argue down what is claimed. C was referred, after a fall, for a spinal x-ray by D1, a GP to DD2 trust. No abnormality was reported, but the radiologist faxed a report to D1 suggesting an urgent CT scan. D1 did not note this report and only acted upon it two weeks later, when a CT scan revealed a spinal fracture. C  was referred for bed rest and emerged from the spinal centre six months later in a wheelchair with paraplegia. It transpired a year later that C’s original fall and later decline in mobility were related to a dystrophic condition. D1 and DD2 remained in serious dispute as to whether the fax had been marked as urgent in a way that would have led D1 to act immediately upon it, rendering DD2 a proper contributor to C’s claim. However , D1 and DD2 joined forces in arguing that the majority of C’s condition was not caused by negligence on the part of either or both of D1 and DD2 Trust. This means that there will be times during the mediation when the defendants will meet jointly without the claimant team being present, to unite over their causation position. The claimant team will not be concerned over being excluded, unless able to be a possibly relevant witness on what separates the defendants over sharing liability or not. So long as one or other or both of them are in fact found to be in breach of duty which caused 171

Mediating clinical claims with multiple parties a worse outcome, the claimant will sit out of such discussions. Other and more contentious joint meetings will need to be convened between the claimant and defendant teams to argue over the causation issues; and for the defendants to argue between themselves about apportionment. This requires nimble process design from the mediator, and a good deal of moving between rooms to get consent to convening such meetings. Occasionally the defence of a case will be shared between non-clinical and clinical defendants, where negligence for an initial injury is alleged, and it is also alleged that the injuries caused by the first defendant were negligently treated once referred to a healthcare provider. C was injured in a fall on D1’s premises, and alleged that security staff employed by DD1 (backed by a commercial insurer) had damaged C’s neck in responding; and that A&E staff at DD2 Trust had failed to diagnose and treat C’s neck properly, causing further damage, before being transferred to DD3, a specialist spinal unit. DD2 and DD3 were jointly represented by the same legal team, instructed by NHSLA. C  alleged that DD3 Trust failed to note ‘acute abdomen’ which led to peritonitis. All defendants denied liability prior to the mediation. At the mediation DD2 made concessions, and DD2 and DD3 offered £100,000 plus costs, with DD1 contributing £34,000. The claim was eventually settled after a mediation of over 12 hours with damages of just over £200,000 plus costs of £120,000, to which DD1 contributed a total of just over £50,000.

Mediations with multiple claimants There may be claims with two, three or more claimants. These are usually fatality cases, where there may be a number of members of the deceased’s family claiming damages arising from alleged dependency on the deceased for income or services. Typically the parties will be a surviving spouse and several minor children. Several claimants may also jointly claim to be ‘victims’ entitled to compensation for breach of the human rights legislation. But in such cases, the claimants usually have unified interests and therefore joint representation and no special complications arise, even if each claim may be valued differently. Occasionally, claimants who would normally be jointly represented have been estranged, and are separately represented. This calls for care on the part of the mediator over keeping offers and settlement terms confidential from each claimant. X  was C1 and C2’s son. He developed chickenpox but also an underlying pneumonia which DD  Trust failed to spot on two A&E  visits. X  died, and A1 and A2 (who subsequently became estranged) sued as secondary victims for ‘nervous shock’ sustained 172

Mediations with multiple claimants when they witnessed X’s sudden death at home following attempts to resuscitate him made by C2’s mother (ie X’s grandmother). Each was separately represented and all offers had to be made confidentially and each claim settled at different figures which were not to be disclosed to the other claimant. Claims by a large number of multiple claimants are encountered far less frequently, but present bigger problems for lawyers and mediators than those with multiple defendants. Sometimes the litigation will be conducted and managed within a Group Litigation Order (or GLO), under CPR Part 19. This will lead to unified case management and may lead to the selection of lead cases to be tried, to establish some general principles and outcomes which will bind all other cases in the cohort, while the other cases may be temporarily stayed for that purpose. Sometimes, there is no need to establish a GLO, especially where the cohort is relatively small. Whichever procedural set-up is used, the lawyers acting for the cohort will run a generic file under which the costs incurred for the benefit of the claimant cohort as a whole will be charged and claimed, with separate files for chargeable work done on behalf of each individual claimant. Whichever approach is taken, clearly the lawyers representing a group of claimants owe a professional duty to each client independently and individually, and even if the generic medico-legal issues are the same for them all (although even that is not always the case), possible conflicts of interest can arise over quantum issues. Do the claimants have different claims and is any offer to one to be kept confidential from the other(s)? Is it a case where claimants need to be put into various brackets for each group of claimants with broadly similar outcomes? Will every claimant each receive the same sum, even if there are differences between the details of each of their claims? Will the defendants in a given case offer a global sum which the claimants’ lawyers must apportion or distribute equally? Some sense of an agreed approach to these problems is inevitably required before a mediation day, consulting as necessary with the mediator and in particular making it clear whether past and future offers must be kept confidential for each individual claimant during the day. The mediator needs to be very careful to observe confidentiality in this kind of case. Sometimes what happens at the mediation leads to a change of mind as to which approach is right. Here is another look at a case illustration used earlier for a different reason. A cohort of breast cancer patients were initially told that histological markers showed that they did not need a certain hormonal treatment after surgery. A  re-test was done some years after their treatment which suggested that this was wrong and they did need hormone therapy after all. But 10 months later they were told that the original results had been correct all along. Most had taken the hormone therapy as advised after the first re-test (which had side effects) and 173

Mediating clinical claims with multiple parties some had not. Up to the mediation, each claimant had had to be seen separately and this continued during much of the mediation. During the mediation, the Trust Claims Manager expressed heartfelt regrets about what had happened to the claimants, listening attentively to them in a full group and individually, even though there was never a formal admission or concession of breach of duty or damage caused by negligence. Responding to this approach, the claimants decided that they would like to settle all claims on the basis that the subcohort of claimants who had taken hormone therapy received the same total damages sum and the remainder, who had not taken the hormone treatment, all received the same, slightly lower, sum.

The retained organs mediations The impact of the retained organs saga (the word ‘scandal’ was used freely at the time) will still be felt in Liverpool years after it first emerged, and it will still be felt by affected families around the UK, though for others not directly affected it will be little more than a distant memory. In all there were four mediations during the long dispute over retained organs, which lasted from 1999 until 2005. For the large numbers of those with little memory for it, a brief summary may help, before looking at the ways in which the mediation process was deployed to assist with its resolution. The starting point was the Bristol Children’s Hospital heart inquiry in the late 1990s – an investigation into levels of mortality from paediatric heart surgery said to be far in excess of normal expectations. Evidence was given to the Inquiry, almost incidentally, by a Professor Anderson in September 1999, that organs from deceased children had been retained after post-mortem examination and were being held in storage collections by the Bristol Children’s Hospital and the Royal Liverpool Children’s Hospital (Alder Hey) as well as the Royal Brompton Hospital, Great Ormond Street Hospital for Sick Children, Birmingham Children’s Hospital, Leeds General Infirmary, the Freeman Hospital in Newcastle, Southampton General Hospital and the Royal Manchester Children’s Hospital at Pendlebury. It emerged that, almost uniformly, this organ retention had been done without specific permission from families. Parents therefore contacted the named hospitals and other hospitals to ask whether they held organs retained from their children and asking for them back. There was a patchy, and in some cases chaotic, response, but many organs, tissue and slides were returned to families, much to their shock. Multiple funerals for the same child were common, spread over years as fresh tissue was traced and returned. It also emerged that many organs had been disposed of as clinical waste. Huge upwellings of renewed grief, coupled with real anger, developed within affected families. The Bristol Inquiry team produced an Interim Report highlighting what had emerged. The Chief Medical Officer 174

The retained organs mediations instigated a census of the problem country-wide and convened a summit for those affected in July 1991. At Alder Hey, it emerged that a consultant pathologist had, as a matter of normal policy and practice, required all organs and tissue removed from children to be stored over a very long period, it was said, for research purposes. As a result a factual investigation was commissioned, chaired by Michael Redfern QC, which reported its findings in January 2001. The report was highly critical of the pathologist and argued that he should not be allowed to practise in the UK again. Although Alder Hey was the most egregious example of organ retention, it was found that stored organs from children had been retained in many hospitals all around the country. These investigations revealed that the law relating to post-mortems and whether organ retention was justified without family permission was unclear. Some retentions followed a post mortem ordered by a coroner when considering whether to convene an inquest (now referred to as ‘coroner’s PMs’): others were convened under the Human Tissue Act 1961, under which a post mortem could be conducted if it was not contrary to the deceased’s wishes as ascertained from enquiry, and there was no objection from ‘the surviving spouse or a surviving relative’ (now called ‘hospital PMs’). The 1961 Act was really directed towards dealing with gifts for anatomical research but came to encompass autopsies to enquire into cause of death for the hospital’s own information. Both the basis for seeking consent and the forms used were ambiguous, and many families had no idea that organs and tissue (including microscopy slides and blocks) from their deceased children had been retained. Inevitably a number of support and pressure groups sprang up, seeking apology, change and clarification in the law and assurance that such a situation could never arise again – indeed, all the non-monetary remedies that it is said claimants seek when making clinical claims of any nature. None of these were deliverable by a judge through the making of civil claims, and there seemed perhaps little likelihood of cajoling these out of the Department of Health. There was no real alternative to issuing civil claims for compensation against the hospitals involved. But there were real obstacles to success here. It was clear that hospitals everywhere had carried out practices such as these, many of them (like Alder Hey and Great Ormond Street) distinguished tertiary centres of excellence. If they had accepted such practices, what possible chance was there of meeting (or, rather, defeating) the requirements of the Bolam standard, as organ retention met with almost universal support from not just a reasonable body of practitioners, but virtually all practitioners. The courts would have to disapply Bolam if such claims were to succeed, even if the other requirements for succeeding in tortious claim were made out, namely causation and foreseeability of damage, the existence and proof of psychological harm, or whether renewed grief short of psychological damage was apt for compensation. There were also, theoretically at least, problems over limitation of action, although in the event that point was not taken by the NHS. 175

Mediating clinical claims with multiple parties A  large number of claimants issued and filed claim forms. Two Group Litigation Orders were made to consolidate the many claims into manageable shape: one became known as the RLCL (the Royal Liverpool Children’s Litigation, dealing with Liverpool region claimants against Alder Hey) and the other NOGL (the Nationwide Organ Group Litigation) into which claims against all the hospitals other than Alder Hey were located. Perhaps because of the very scale and novelty of these claims, the NHSLA took the initiative to consider an alternative dispute resolution process for dealing with the claims within both RLCL and NOGL. At a very early stage of the litigation, with draft pleadings exchanged but not formally filed and served, NHSLA approached CEDR to explore whether the claimants would be willing to participate in a specially-tailored mediation process before the litigation process inexorably took over. They asked CEDR, as a neutral provider of mediation services, to set up separate meetings with each steering group of lawyers (including counsel and solicitors) for the RLCL and NOGL groups, which they did, involving a staff mediator and an American mediator with experience of mass tort mediation of public disputes in the USA. There was unsurprisingly some initial suspicion and reluctance on the part of the claimant lawyers approached to embark on such a novel process, especially because it was an initiative of the defendants, but this was overcome quite speedily. CEDR was then engaged jointly by NHSLA and the two lawyers’ steering groups to design and set up a suitable mediation process, in the hope that acceptable settlement terms for all claims might be negotiated. A  number of meetings were convened to discuss draft proposals as to how, and on what basis of confidentiality, the mediation process would be held. The first scheme was very elaborate, involving a great deal of public consultation in mass meetings, and a stripped-down version was agreed, deploying claimant focus groups to consult with lawyer steering group teams, whose joint recommendations over settlement, if any, would then be the subject of a cohort-wide poll. This involved preparation for a three-day mediation at a neutral conference venue in the north-west, with two very experienced mediators responsible for running the process, at which the CEDR case manager responsible for all the administrative arrangements would also be present. Virtually all the defendants were NHS Trusts, and those that were not ceded responsibility to the NHSLA to represent them at the mediation, whose negotiating team was headed by the Chief Executive of the NHSLA. As part of the preparation for the mediation, CEDR, as the jointly-appointed neutral provider of mediation services, wrote to all claimants and defendants who were going to be represented at the mediation with an explanation of what the process was likely to entail, and underlining the terms and the limits of the agreed confidentiality clause. At the mediation the two claimant teams had their lawyer steering group present and also focus groups of selected parents, some elected by the general constituency of claimant families, and some by virtue of their involvement on the executive committees of some of 176

The retained organs mediations the support groups formed from families affected. It was left to RLCL and NOGL to decide how to arrange lay representation, and how precisely to involve them in the process, but it was clear that some parents definitely needed to be present and involved at the mediation. Like all mediations, what actually went on at the mediation in late 2002 was governed by a signed written mediation agreement which remains in force, and what parties said to each other during those three days is still to be treated confidentially, except insofar as outcomes were agreed to be publicised. The Alder Hey litigation comprised in the RLCL claims was settled in principle at that mediation, subject to a poll of all claimants to be conducted immediately after the mediation. The provisionally agreed outcomes were that: • each affected family (there were roughly 1,000 such families in the RLCL) would receive £5,000 compensation, regardless of whether the retention issue affecting them followed a coroner’s PM or a hospital PM or involved blocks and slides only; • a trust fund was set up to deal with difficult cases, where compensation might arguably need to be higher than the general figure; •

the legal costs of the RLCL lawyers steering group and individual costs of other law firms on individual cases were to be paid at an agreed figure;

• a public apology about what had happened at Alder Hey would be made in person in Liverpool by an appropriately senior person; • a commemorative memorial would be put in place at Alder Hey Hospital to remember children whose organs were retained and the support given by the parents; • all efforts to trace and return any other organs would be made swiftly; • there would be a commitment to clarification and reform of the law as set out inadequately in the Human Tissue Act 1961. In the letter sent to all claimants in the RLCL case, the steering committee underlined the fact that the outcome of the litigation remained uncertain if proceeded with and more importantly that a judge could simply not order most of the outcomes that had been negotiated, even if the claim was won in principle. An overwhelmingly high number of claimants accepted the terms and the RLCL litigation was concluded by agreement promulgated in early 2003 and approved by the judge assigned to the retained organs litigation, Mr Justice Gage. The law was reformed when the Human Tissue Act 2004 was enacted, the new Human Tissue Authority was set up as a regulator of mortuaries and the management of human tissue, and steps were taken to deliver the remaining agreed outcomes. 177

Mediating clinical claims with multiple parties However, the NOGL claim did not settle at the mediation, and that Group Action proceeded through the necessary stages to trial, with around 2,140 claimants registered as involved. The very few Liverpool claimants who did not accept the outcome of the RLCL mediated agreement transferred into the NOGL litigation and would be bound by the results of that litigation. The saga then took a sadly adversarial turn before mediation was again deployed to try to resolve the issues by mutual agreement that were redefined by the litigation. Firstly, the defence asked the trial judge to impose a costs cap on the NOGL claimants for the period running up to and including the trial. This was imposed by Gage J at a hearing on 14 April 2003. This was the first time that a costs cap had been imposed in a piece of group litigation, preceding by ten years or so the Jackson reforms and the amendment to the CPR which introduced costs budgeting in April 2013. Interestingly, the claimants told the judge that they anticipated that total damages for over 2,000 registered claimants might total over £15 million (around £7,000 per claimant) while the defendants asserted that damages would be a maximum of £3 million (around £1,400 per claimant). The cap on costs imposed from February 2003 until the end of the trial, which turned out to be a year later, was £506,000. Then, after a powerfully argued and legally complex trial starting on 26  January 2004, Gage J  gave judgment on 17  February 2004 on the three test cases heard by him. He declined to find the existence of a tort of wrongful interference with a body, when the transfer of specimens to pathologists was consequent on a properly-authorised post mortem (whether by coroner or hospital); and he would only apply the law of negligence to the facts. He dismissed claims for organ retention following a coroner’s PM, and also dismissed one of the two hospital PM cases on the grounds that the claimant’s psychiatric damage, while caused by later organ retention disclosure, was not foreseeable (he would have awarded £4,500 to her if liability had been established). In the third case, where the brain of a stillborn child had been retained without disclosure and later disposed of, psychiatric damage was foreseeable in that claimant parent, and he awarded £2,750. The principles have to be distilled from what was actually a judgment dealing with three specific test cases. These were: firstly that any retention of organs after a coroner’s PM was not actionable. As to later disclosure of any retention following a hospital PM purportedly authorised under the Human Tissue Act 1961 Gage J in effect rejected the Bolam standard, by which virtually universal retention without consent would have excused retention in the test cases, and found that claims could be made and that claimants would succeed if they proved that psychiatric injury caused by later disclosure of organ retention was foreseeable at the time they were asked to consent to a hospital PM, so long as they had suffered a psychiatric injury (not ‘merely’ a grief reaction, however understandable). It was also said to be doubtful whether valid claims could be made in 178

The retained organs mediations relation to tissue retained in blocks and slides where pathologists had applied skill to create them. This led to enormous problems. For a start, the outcome jarred painfully with the outcome of the RLCL mediation. Every Liverpool claimant family, regardless of whether the claim arose out of a coroner’s PM or hospital PM or retention related to tissue incorporated into blocks and slides, will broadly have received equal sums in compensation. A large proportion of the NOGL claimants, whose case had been based on retention following a coroner’s PM or where the tissue was in blocks and slides, got nothing and were potentially liable for the defendants’ costs, having lost, unless somehow they had costs protection, for instance through receiving legal aid. Furthermore, there was considerable doubt about how many of the hospital PM claims would be successful because of the negligence test. Some of the non-monetary outcomes which emerged from the main mediation benefited NOGL as much as RLCL claimants, such as the commitment to law reform, but there were no other non-monetary benefits for NOGL claimants comparable to those agreed for the RLCL claimants, such as an apology or a memorial. For a while it seemed as if there was no alternative to trying every hospital PM claim, as the test had to be applied as to the foreseeability of psychological harm to individual families on the facts of every case. With all the coroner PM claims lost and doubts over how many hospital PM claims would be won, the position over legal costs was also hugely complex. Time for considering an appeal was extended, and with major concerns to both sides in view of the controversial nature of the judgment (the NHS over the inroads into Bolam, and the NOGL claimants over the loss of coroner PM cases and the tough test for hospital PM cases), appeals were certainly possible, with huge legal costs continuing to escalate. Gage J  expressed the hope that costs should, if possible, be saved in working out the implications of his judgment, so CEDR made contact with the parties to invite them to re-engage in a mediation process to see if a way through the outcome of the NOGL litigation could be found. An initial planning meeting was convened to see if the design of a further mediation could be agreed and how each party would be represented. This led to a further two-day mediation being convened in London, with two experienced mediators running the process who had not mediated the earlier RLCL/NOGL mediation, attended by legal teams for both sides and a specially elected focus group of parents with whom the NOGL legal team could confer during the mediation over any proposal which might emerge. On the second day, a global sum for compensation for all hospital PM claimants was agreed. Unfortunately this was not the end of the controversy because of the legal costs difficulties, and two further separate days of mediated discussions were convened to try to agree how to deal with these, without unrecovered 179

Mediating clinical claims with multiple parties costs necessarily making inroads into the damages fund for some or all of the claimants. All the coroner’s PM cases had lost, but how many had costs protection by virtue of being legally aided, and how many were funded by other means? How many of the hospital cases would have failed through not proving the foreseeability of psychiatric harm? How many of these had legal aid, or were privately funded with no costs protection, or were funded by a conditional fee agreement, with or without after the event (ATE) insurance? All those cases might potentially lead to money flowing from claimants or their ATE insurers to the defendants. Conversely, how many hospital PM cases would satisfy the test and who would be entitled to have their costs paid by the defendants? Given the costs cap, which set a maximum for the claimant legal team’s recoverable costs, how did this fall to be adjusted because many claims would have been lost and an indeterminate number won? While an agreement as to the net flow of costs from defendants to the claimant team was reached through these additional mediations, it was inevitably left to the NOGL legal team to work out how these were implemented through confidential discussions with their clients, and the outcomes of these have not been publicly disclosed. A number of useful lessons emerged from this first foray into the mediation of group litigation claims. The value of well-selected focus groups to engage as fully as possible in the mediation process was undoubtedly one, and of claimants having coalesced around a steering group of lawyers was another. These structures are likely to emerge early in most cases involving group claims, and it would be difficult to organise a mediation process coherently without their existence. Polling interested parties over provisional results will become increasingly easy with the advent of electronic systems. The perceived neutrality of the mediators and any provider organisation is fundamentally important. This needs careful thought at the start of any intervention. For CEDR to have been in effect nominated by the defendant NHSLA and effectively thrust upon the claimants created understandable suspicion at the outset, even though several lawyers in each steering group had had previous contact with mediation generally and CEDR in particular. This was overcome, and no suggestion of bias on the part of any of the mediators or CEDR appears to have emerged thereafter, even though their fees were by agreement paid by NHSLA, which could create just the same perceptions of bias as were discussed earlier in relation to smaller scale mediations where one side pays the mediator’s fee. Yet it would have been very hard to organise contributions to the mediation fees and CEDR’s costs from the claimant cohorts. Mediation provider organisations need to be entirely open and insistent on their perceived neutrality. Usually it is enough to identify and acknowledge the possible perception with everyone for it to be dissipated. Finally, why spend the money on a neutral within a mediation process, rather than relying on traditional ‘adversarial’ discussion or investigation processes? It would have been extremely difficult for the parties to have 180

Alternative models and bespoke process design produced agreed outcomes at any of the stages of the retained organs litigation without independent chairing by neutral mediators. All the mediations were co-mediated by two experienced mediators, and this proved worthwhile even though normally only one mediator will be deployed in clinical claims. The issues were too complex, and frankly feelings were too high for bilateral disputes to be easily resolved by the parties’ representatives across a table, especially with lay focus groups involved. As it was, only RLCL of the two GLO cases was resolved at the first mediation and several further mediations were required to bring a degree of finality to the NOGL claims.

Alternative models and bespoke process design If mediation is not deployed, what other models are currently in play to make resolution of disputes and controversies possible? The public inquiry is a well-used approach if specific objectives are considered important, although the process attracts a good deal of criticism, not least about the cost involved and the slow speed. Careful design of public inquiries can significantly improve their impact on participants. Sir Robert Francis QC’s Mid-Staffordshire Inquiry was one example, during which some of the evidence-gathering methods he used for handling painful sessions with families owed something to the sort of sensitive processes familiar to mediators. Also some emotional and counselling support was specifically provided for those who gave evidence, or who had been damaged by what went wrong. The massively expensive and slow Saville Inquiry into the Bloody Sunday shootings was firmly adversarial and based on evidencetaking techniques, for obvious reasons. The less comfortably received Hutton Inquiry into the death of Dr David Kelly took yet another approach. The methods used by the Bishop of Liverpool in his re-examination of the Hillsborough disaster is yet another example. More recent inquiries high in public profile are the IICSA process looking at historic child abuse allegations, and the Grenfell Tower inquiry, examining the causes of the appalling fire there. The choice lies between the way that any neutral or neutral panel is required to work with a given piece of process design in a complex set of circumstances. A  fact-finding inquiry must broadly conform to the rules of natural justice, in making sure that evidence is heard, or at least published, in public and that anyone who might be criticised in its findings has an opportunity to hear and answer those criticisms publicly. A process which is more about the reconciliation of different interests and less to do with the finding of facts can use different methods. CEDR consulted widely on this issue and produced a report of its Inquiry into Inquiries. This suggested that the traditional public inquiry model is rolled out too readily. Governments make assumptions that this is the right and only process to use when a public scandal emerges, without considering whether there might be a better way to design processes and 181

Mediating clinical claims with multiple parties deploy neutrals for some cases to deal with wider objectives. The CEDR publication prefigured the even more authoritative report of the Institute of Government, published in 2017 under the title How Public Inquiries Can Lead to Change, both of them to an extent questioning whether a public inquiry is always the right choice. The Bishop of Liverpool’s review into the Hillsborough Disaster used some novel ways to involve lay parties and give them a voice. Mediation of large-scale controversies offers a managed way for a neutral to meet privately with each team, as well as convening and chairing full cross-party meetings, to probe underlying needs and objectives. It can be used to raise such questions as ‘what do you really want?’ and ‘are there any risks attached to that attitude or proposal?’, and to make sure that everyone on each team is given a chance to ask and answer those questions and be given advice on them before and after answering them. Additionally, and unlike an inquiry, a mediation also might offer the possibility of direct compensation and resolution at a personal level. Neutrals in any kind of process involving groups must seek to neutralise any risk that either party might be dominated by one interest (whether it be a claimant lawyer or a particularly vocal claimant, or a defensive hospital manager or clinician without a sense of proportion) or that one party exercises dominant power over the others in a situation of imbalance. Successful resolution of such issues needs cool heads and proposals and actions jointly agreed by each party, tested for wisdom against what will and will not work for the other party. Uniquely, only a neutral ‘mediator’ who has spent confidential time with both parties and built up mutual trust is in a position to assist in this way. The CEDR  Inquiry on Inquiries suggests that prior thought given to the best process design is effort well invested. It requires thought to be given to the value of outcomes other than just the finding of fact and the apportioning of blame. The retained organs saga demonstrated vividly the limitations of what a judicial decision might deliver and cost, and the importance of attending to all aspects of human need in visualising outcomes in such situations. Triage is required, and then imaginative process-design based on wide experiences of available options and effective consultation stands a good chance of delivering what parties might really need, for which a sense of ownership and confidence in the process by the parties is also vital. Public inquiries have to contend with an inevitable dichotomy of objectives, which resonates with mediation, both in terms of multiple party disputes and indeed simpler two-party disputes. One is to deal properly with catharsis for victims, especially where anger, grief, revenge and occasionally guilt underlie the unravelling of events. The other is to sort out the legal rights and wrongs, to analyse precisely what went wrong, to seek to secure learning and change from what emerges, and to consider compensatory outcomes or other practical consequences. Mediation aspires to attend to both parts of this dichotomy, whereas Serious Incident investigations, court trials and public inquiries before retired judges usually only have a mandate to deal with fact-finding and 182

Alternative models and bespoke process design principles. The fundamental question, when faced with a challenging set of events which require resolution, is to ask how to design the way it is handled, without making assumptions that one way is better than another. So even if a pure mediation process may not necessarily be precisely the right process to use in a given situation, utilising some of the ideas that underpin mediation, such as the deployment of a skilled neutral who is entitled to speak confidentially to each party within an overall confidential process, often nevertheless working towards an agreed public outcome, may be useful. It is not always the case that what solves a problem is to find facts about it and make determinations of fault. Even if that is one of the objectives of any given exercise, paying attention to the human needs of those swept up in it as well, if not in priority to fact-finding, is always essential and of often under-estimated importance.

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Chapter 9

Settlement: what is a ‘successful’ clinical mediation?

It is trite to define the objective of a settlement process such as mediation as being the delivery of settlement itself. That is what a mediator hopes to achieve, and there may be a temptation among both mediators and lawyers to rate a mediator by their settlement rate. This needs a more modified assessment. After all, mediation operates as an adjunct to civil procedure, giving parties the chance to test out their respective cases ‘in the shadow of the law’, or more accurately against the chances of success or failure in court. As we have seen, settlement rates in clinical claims are extremely high, both when mediated and when not, and the main issue is whether claims might be settled earlier and through a better process. It would be a hard judgement indeed to criticise mediation as having failed for not producing settlement and at the same time to criticise it for intercepting triable cases in a way that infringes party rights to a public trial under the European Convention on Human Rights (ECHR), Article 6. Mediators perhaps need to be brave enough to claim that mediations that do not lead to settlement show that they are not cajoling parties into unwanted outcomes, but are letting them make a free choice to reject settlement and return to litigation, when that seems to be in their best interests. It will be observed from reading the anonymised case studies in this book that there is more than just monetary compensation in play at mediations. Engagement and exchanges that occur during the mediation take on intrinsic worth for those who participate in them, regardless of whether settlement is reached. Claimants, and indeed clinical staff, benefit from a secure yet honest exchange of views which accommodates the way sides feel about what happened as well as, and sometimes even in priority to, discussions about legal liability and compensation. These may lead to imaginative agreed outcomes which go to repair or consolidate a damaged relationship between claimants and their local NHS Trust or GP surgery, or even with the NHS at large. The facts in Halsey v Milton Keynes NHS Trust have already been noted as having created a situation in which failure to deal with that approach at the earliest stage led to protracted litigation, mostly about an issue that was of no personal concern to Mrs Halsey, and nearly led to financial catastrophe for her. Careful readers of the case studies will also note that in many cases, the settlement of the damages element was at figures a very long way from what each party put as their starting point for claim or defence. Is justice 185

Settlement: what is a ‘successful’ clinical mediation? or fairness being subverted by this? Some would argue (or at least have argued) that it is. Professor Dame Hazel Genn’s famous sound-bite in her 2008 Hamlyn lecture still resonates in the literature on mediation: ‘Mediation is not about just settlement: it is just about settlement’1. A  number of points need to be made about this rather misleading statement. First, as this book has, it is hoped, made clear, mediation is not only about settlement. It is about an encounter between disputing parties in a setting that makes it easier to talk to each other about what they choose to discuss than a courtroom would permit, and to derive benefit from that if they can manage to do so. Mediation of clinical claims, in particular, is also about exploring and agreeing outcomes that a judge cannot award, such as apology, explanation and reassurance of lessons being learned. Any term for a consensual settlement process (negotiation, or judicial settlement meetings, or judicial evaluation) can be substituted for the word ‘mediation’ in her aphorism, because any settlement is in a broad sense ‘just about settlement’. Whether it is necessarily any more or less just than a judicial decision is moot. It is also true that settlement is not ‘justice’, in the sense that the pronouncement of ‘justice’ by the judge decides party rights and is rationally based on the appraisal of tested evidence. But parties in clinical claims appear not to be wedded to judicial decision, judging by the frequency of settlements, and it can only be assumed that this is because trial outcomes are hard to predict, and that parties regard it as wise to try to buy up the risks of an unfavourable trial outcome. But we need to go further on this, because mediation is not necessarily about settlement at all. Mediation’s strict meaning relates to acting as an intermediary in the area ‘between parties at variance’, as the Oxford English Dictionary puts it. The intention of the process is to improve matters and perhaps also to help people conclude their differences by agreement, but its main characteristic is to facilitate communication and understanding and not necessarily to achieve (let alone in any sense compel) settlement. It is worth quoting Francis J’s remark in the Charlie Gard case once more, as he captures the essence of this well: ‘However, it is my clear view that mediation should be attempted in all cases such as this one, even if all that it does is achieve a greater understanding by the parties of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it’2.

1 H Genn, Judging Civil Justice: Hamlyn Lectures 2008 (Cambridge University Press, 2008). 2 Great Ormond Street NHSFT v Yates and Gard [2017] EWHC 1909 (Fam).

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Settlement: what is a ‘successful’ clinical mediation? In such a case, where it appeared that the parents and the hospital were diametrically and quite probably irreconcilably of different views in terms of outcome, there was a benefit to be derived from a managed difficult conversation, assisted by a neutral who could spend time with parties separately as well as together, helping them to face such differences as separated them in a civilised way. So to return to the Genn aphorism, ‘mediation is not necessarily about settlement’ either, even though it has a very good track record in delivering it in clinical claims. After all, seeking justice is not a compulsory exercise. Engagement in civil claims is elective, certainly for claimants. Nor can courts order parties to take interesting cases to trial in order to create useful precedents or to guarantee ‘justice’. No one will offer to fund parties to ensure that interesting cases are tried. The common law develops by accident on the back of the stubborn and well-funded parties determined enough to take their case to trial, based either on certainty about winning (rightly or wrongly) or willingness to cope with losing. What happens during settlement discussions of any kind is the re-appraisal of risk. Usually both parties move towards each other in terms of valuing the case upwards or downwards when measured against the chances of success. Another factor which determines whether settlement is reached, and on what terms, lies in each party’s personal evaluation of what they think will satisfy them, and what their claim is worth in their own eyes, set against the risk of doing better or worse at trial, and set also against the price to be paid in terms of effort, worry, sleepless nights and time inevitably involved in reaching court. Claimants sometimes simply say to their legal team ‘that will do, thank you’, and even if that is less than their lawyers advise is likely to be recoverable, they appreciate the chance to make their own choice. Lawyers have no real right to say ‘what a pity that my client settled that very interesting case’ any more than judges can regret being deprived of making an interesting precedent. C suffered a leg fracture which was treated by traction instead of open reduction. Non-union resulted in eventual amputation. The claim was revised upwards at the mediation to £2.4 million. DD Trust argued that traction was Bolam compliant when C was treated, even if less favoured now as a technique, and cast considerable doubt on quantum in view of C’s past history. DD Trust had offered about one-tenth before the mediation, then at the mediation they bid two increasing five figure sums. C quickly accepted, rather to the surprise of C’s legal team. Occasionally a claimant will surprisingly accept even a take-it-or-leave-it single offer, on the mediation day or even shortly afterwards: 187

Settlement: what is a ‘successful’ clinical mediation? C claimed against DD Trust for allegedly failing to prevent the suicide of S, C’s sibling, and also in C’s own right as a secondary victim who had suffered depression and suicidal ideation and cardiac illness attributable (C claimed) to S’s death. The claim was for a substantial six-figure sum, but C had made a Claimant Part 36 offer at two thirds of this. C was too fragile for an initial joint meeting, so the mediator conveyed DD Trust’s reasons for rejecting C’s claim at that kind of level (causation was unclear and earnings losses unprovable) and brought back C’s responses. DD Trust felt their valuation at around 10% of the original claim was right but increased that figure by a third (plus costs) as their only offer that day, with no guarantee that a Part 36 offer would match it. Despite a request for clarification, DD Trust would not move and the mediation ended without settlement. The next day, C accepted DD Trust’s offer plus costs. Settlement at a mediation may be driven by a number of largely unspoken motivations. Rarely, it may even be obstructed by ‘settlement panic’, which can afflict those who have been engaged in a dispute for years and find it hard to believe that tomorrow it may not be there, thus finding it difficult to sign off on terms. To part with a well-argued or even an ambitiouslyargued claim by settling for less can be an uncomfortable experience for those involved. It may be wise to delay a final decision over whether to settle for some days after a mediation day, agreeing a date and time until which an offer remains open for acceptance, so that the process (akin to bereavement, sometimes) of parting from previously hoped for better terms can be endured and accepted, if that is the decision that is made. Sometimes further expert evidence is required before either or both parties feel that finality is acceptable. Mediators much more frequently experience lay party relief that at last a claim can be ended; that claimants can receive an appreciable sum of damages, which is often better than the worst case scenario about which they have been advised; often coupled with an acknowledgement that they have suffered a wrong for which regret has been expressed personally, enabling them to begin life again without the burden of uncertainty and personal strain that often afflicts those who have embarked upon or (in the case of clinicians) been drawn into litigation.

Practicalities for settlement: written terms Well-drawn mediation agreements require that, for settlement terms to be binding, they must be put in writing and signed by each party (though not by the mediator). The decision in Brown v Rice and Patel3 (not a clinical

3 [2007] EWHC 625 (Ch).

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Practicalities for settlement: written terms claim) suggests that even a partial or conditional settlement should meet the same formalities, such as leaving a firm offer open for acceptance up to a certain day and time. There is no particular formality required of such a written record, though if it is intended to have binding contractual force, it will need to have the usual requirements for a binding contract – an intention to create legal relations, certainty, completeness and valuable consideration. None of these present much of a problem to satisfy. A standalone agreement is necessary if proceedings have not been issued, and it will be enforceable as a simple contract, probably by seeking summary judgment if it ever became necessary. When proceedings have been issued, the written document produced is quite often the consent Tomlin Order itself, which can then be lodged at court to stay the proceedings on the terms agreed. Where the claim involves a minor or patient without capacity, any agreement reached at the mediation must still be approved by the court. It has proved extremely rare for a mediated settlement not to be approved, especially when the advocate at the approval hearing was at the mediation and can justify any surprising discount applied to the damages valuation proposed and provisionally accepted at the mediation. As to non-monetary outcomes, these might include: • an agreed press release in cases of public interest; • a widening of any previously-contracted restriction over the confidentiality of the settlement terms; • future involvement of the claimant and family in the way the relevant NHS body changes its practices; • the availability of future treatment; • a written apology from the NHS body or a clinician, focused on concerns that emerged from the mediation; •

a meeting at a later date for further discussions on agreed topics between the claimant and family and the NHS body concerned;

• an agreed programme of change with a date fixed for review, perhaps involving the claimant and family; • identifying a point of contact if the services of the Trust are ever needed again, or any difficulty is experienced in accessing them. If the mediation does not produce agreed settlement terms on the day, the mediator will usually offer to follow up with each party by a set date to see if there is scope for further movement or negotiation. Quite often parties will contact each other direct, and many mediated claims settle within a short period of the mediation. The mediator can help the parties to agree a timetable and may be able to assist further when discussions resume, even by convening a resumed mediation meeting. 189

Settlement: what is a ‘successful’ clinical mediation?

Mediating appeals in clinical claims Mediation can also play a role at the appeal stage of a clinical claim. The Court of Appeal Mediation Scheme (CAMS) will accommodate such claims at a reasonable fee per party, and there is some expectation in the court that mediation will be tried before the appeal is heard. Once a losing party is given permission to appeal, the balance slightly shifts away from a party satisfied with having won at trial, and motivation for conceding something quite appreciable off the judgment sum may come into play. Here is a typical case: C sued over the death of C’s spouse S from cancer not spotted when being treated for bilharzia by DD Trust’s tropical disease consultant. At trial C was awarded £270,000. DD Trust appealed on the basis that the judge had failed to apply Bolam/Bolitho correctly, when there had been only a 1:1,000,000 chance of such a condition developing. DD Trust indicated willingness to pay a five-figure sum, and wanted to keep relations between C and the Trust on a good footing, even if the settlement level might seem disappointing. C bid several lower figure than awarded in response to DD Trust’s high five-figure offers. A private meeting was convened between C and a friend and the DD Trust manager. Agreement was reached shortly after at somewhat under £100,000 plus costs.

Costs and funding In every clinical mediation – indeed, every mediation – the amount of damages is not the only significant monetary issue which needs to be discussed. Especially in the English civil justice system, legal costs take on enormous importance. Unlike in the US, where costs recovery broadly does not exist, and parties must fund their own litigation, win or lose, claimants in England and Wales who win damages as a matter of general principle have been entitled to expect to recover from the losing defendants a substantial amount of the legal costs it has taken to win, so that the damages are left untouched by having to pay their lawyers. The converse has traditionally been that where the defendant defeats a claim, or beats a formal Part 36 offer to settle, the claimant has become liable for some or all of the defendants’ legal costs. This is sometimes called the ‘costs shifting’ rule, a phrase much used by Sir Rupert Jackson in his reports on the reform of the legal costs rules. This was broadly the general rule which applied to any clinical claim issued before 31 March 2013. Legal costs are a huge topic which cannot be covered other than in outline here. But the bald statement of the principle of costs recovery by a winning litigant set out in the previous paragraph is now subject to many qualifications and exceptions, some of which relate particularly to clinical 190

Costs and funding and personal injury claims. Whether, and if so what, costs are payable is also closely related to the way a claim is funded. This section will look in outline at those issues but will approach the topic mainly from a mediator’s viewpoint as to practical management of costs negotiations, which usually arise towards the end of a clinical mediation. It is fundamental that every settlement must incorporate a term as to how the costs of the claim are to be dealt with. If a settlement agreement is silent as to the burden or destination of legal costs, no order as to costs will be made: no costs outcome will be assumed or implied. Since 1  April 20134, the basic rules about costs shifting, under which a successful party, whether claimant or defendant, expected to have most of their costs paid, have been fundamentally changed by a concept called ‘qualified one-way costs shifting’ (QOCS), which applies to all personal injury (including clinical) claims and claims for death and dependency. Claimants get costs from the defendant if they win, but are no longer liable to the defendant if they lose or discontinue a claim. The benefit of the change for defendants is that they are no longer liable to bear the claimant’s success fee or all of the ‘after the event’ (ATE) insurance premium under the claimant’s conditional fee agreement funding (see the next section for a fuller explanation of these terms). The qualifications to this protection are that a claimant may still be liable to pay the defendant’s costs: (1) if an adverse costs order is made against the claimant, so long as the claimant has received some damages, in which case the defendant’s costs recovery is limited to the deducting costs off amount of damages and interest payable: this will only arise if a claimant is awarded some damages at trial, but has failed to beat a Part 36 offer, as if a claim is either discontinued or lost at trial, there will be no damages payable on which an award of costs to a defendant can bite; (2) (without court permission needed) if the claim is struck out as disclosing no reasonable grounds for an action or as an abuse of process, or the conduct of the claimant or representative ‘is likely to obstruct the just disposal of the case’; or (3) (with permission of the court) if a claim is found to have been ‘fundamentally dishonest’. In cases (2) and (3), there is no limit on the amount of defendant’s costs that the claimant may be ordered to pay, and these could include a defendant’s pre-issue costs. QOCS applies only to issued claims. In claims that are settled by mediation or otherwise before issue, claimants have never had any liability for defendant costs if they discontinue before issuing proceedings, nor will 4 As briefly noted in Chapter 8

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Settlement: what is a ‘successful’ clinical mediation? defendants pay them in the absence of specific agreement to do so, which is unlikely to be forthcoming. Even if a claim is conceded and damages are agreed pre-issue, technically defendants have no implied liability for a claimant’s costs of preparing a claim which is settled by payment of damages before proceedings. However, by convention claimants always ask for, and defendants always pay, costs in addition to damages when a claim is settled before issue. If they did not agree to do so, then the claimant would simply issue and obtain a right to costs under the CPR, all at much greater expense.

The relevance of funding Clinical claims may be funded in several different ways, each of which impacts on questions of costs recovery. Mediators should ask how the claim is being funded before the mediation is convened. Private resources Funding by private resources is rare, bearing in mind the huge cost of investigating and conducting a clinical claim. The client undertakes to fund their own lawyer, who will probably ask for sums on account of costs throughout the case and will deliver interim bills covering counsel’s fees, solicitor’s costs, and expert and court fees as incurred. Most commercial litigation is funded on this basis, affordable by large companies. In such cases, a claimant who wins will receive their costs on the standard basis. However, in clinical claims, if the claimant loses, there will normally be no liability for the defendant’s costs under QOCS, as explained above. Similar rules would presumably apply if a claimant financed their claim by a crowd-funding campaign. This would effectively be private financing. ‘Before the event’ (BTE) insurance Most householders and car owners also pay for legal expenses insurance as part of their insurance cover, which will offer to pay legal costs up to a pre-set limit, sometimes £50,000 and sometimes more. The insurer will try to encourage the policyholder to instruct a nominated law firm with whom costs arrangements have been made. The limit applies both to the claimant’s own costs and any liability for the defendant’s costs, so if a Part 36 offer puts a claimant on risk, the indemnity limit is immediately put at risk by the possibility of being needed to pay the defendant’s costs if the offer is not beaten. If the claimant wins or beats any Part 36 offer, again standard basis costs will be recoverable from the defendant. The ‘event’ is the clinical event giving rise to the claim: the policy is purchased before any cause of action has arisen as a precaution against possible liability for legal expense. 192

The relevance of funding Conditional fee agreements and ATE insurance These are currently the most frequently-encountered means of funding clinical claims. Popularly known (and sold) as ‘no win no fee’, a law firm enters a conditional fee agreement (CFA) with the claimant, agreeing to undertake a claim on the basis that the lawyer will bear the cost of conduct during the life of the claim without charging the claimant for the value of work in progress or for disbursements. If the claim is won (by securing the payment of damages however small) without failing to beat a Part 36 offer, the defendant will pay the claimant’s standard basis costs, and the claimant’s lawyer will also be entitled to a success fee, effectively to compensate them for taking the risk of running the case and financing the work in progress. If the claim is lost, liability for the successful defendant’s costs may arise in some circumstances, so the claimant is also advised to take out an ATE insurance policy to protect them against that potential liability, so called because it is only written after the alleged negligence or ‘event’. How much the success fee and ATE premium is, and who pays them at the end of the claim, whether won or lost, depends upon whether the claim was issued before, or on or after 1 April 2013: (a) claims issued before 1  April 2013: there are still appreciable, if ever-reducing, numbers of claims afoot funded by ‘old-style’ CFAs. These need to have been issued before the rules changed on 1 April 2013 as a result of the Jackson costs reforms. Here the success fee (a percentage uplift of the base fees of solicitor and counsel (not a percentage of the damages) can be up to 100% in risky cases that are won and if the claimant wins, it is payable by the defendants, who are also liable for the ATE premium incurred by the claimant. The latter is usually payable in tranches as the case proceeds, and can be many thousands of pounds in a claim where breach of duty and causation are fiercely contested. If such claims are lost, claimants have no liability to their lawyers – no win means no fee – but their liability for their own expert’s report fees and the defendant’s costs should be met by their ATE policy; (b) claims issued on or after 1 April 2013: this is now the commonest funding encountered in clinical claims. The Jackson reforms, introduced on 1  April 2013, abolished the right of the defendants to recover costs if they defeated a claim, at trial or on discontinuance, other than in limited circumstances. They also abolished the right to recover success fees from the defendant in the event of a win. Instead, a success fee of no more than 25% of the damages can be recovered from the claimant’s own damages award. Claimants in clinical claims can still recover from the defendant any ATE premium paid to cover the cost of expert fees insofar as it relates to the claimant’s liability for one or more expert reports on liability or causation, and the costs of those reports are not allowed under the costs order. The reforms were supposed to reduce the premiums payable 193

Settlement: what is a ‘successful’ clinical mediation? for ATE policies, as claimants were only exposed to payment of the defendant’s costs if they failed to beat a Part 36 offer, or exaggerated or concealed material facts from view. ATE policies are still required to cover that reduced exposure to costs risk. Again, if the claim is lost, the claimant has no liability for their own legal costs, but also will have no liability for the defendant’s costs under QOCS. ‘Damages-based’ agreements (DBAs) and contingency fee funding Under these options, the claimant’s lawyer is authorised to be remunerated by an agreed percentage of the damages awarded (hence ‘damagesbased’). This is a funding arrangement familiar to US litigators and also to applicants to the Employment Tribunal in England and Wales. It was authorised for use by the amendment rules in 2013, but has hardly ever been used because of perceived defects in its structure. It is under review, but can be ignored for the time being in clinical claims. Legal Aid Contrary to popular belief, there is still some legal aid funding in clinical claims, especially when dealing with cerebral palsy and other catastrophic claims brought on behalf of children, and also in claims under the Human Rights Act 1998. If the claim is won, the defendant pays standard basis costs in the usual way. If lost, the claimant’s lawyer is paid a reduced rate by the Legal Aid Fund and the claimant is protected against liability for the defendant’s costs. Whatever the funding method involved, the claimant is obliged to notify the defendant of which is being utilised. If the claimant does not do so, the defendant is entitled to assume that the claim is being privately funded.

How legal costs are controlled by the court Costs are now controlled both prospectively and retrospectively. The first clinical claim in which a cap was placed on recoverable costs for an appreciable period of the claim to the end of projected trial was in the Nationwide Organs Group Litigation (part of the retained organs litigation), discussed fully in Chapter 8. Since April 2013, virtually all clinical claims are subject to cost budgeting at the first costs and case management conference convened after a defence has been filed and directions given. A  Queen’s Bench Master or a District Judge will give tailor-made directions for the case, and set the parameters for expenditure on case preparation and expert evidence. That means that parties to a mediation occurring late in the life of a claim should already have a fairly clear idea of how much each side’s costs will be. There may be problems and disputes over recovering unbudgeted costs or expenses, such as unapproved fees for unauthorised expert witnesses. 194

Problems over costs at mediations: the global offer Costs are quite often agreed between the parties at the end of a claim, whether settled by agreement at a mediation or otherwise or following acceptance of a Part 36 offer or after a trial. The alternative is ‘detailed assessment’, a cumbersome procedure by which a costs judge is taken through the receiver’s file and decides in accordance with established principles relating to reasonableness and proportionality of the work done and cost claimed. These standards vary depending on whether the costs are payable on ‘the standard basis’ or ‘the indemnity basis’. Indemnity costs are only normally payable if a defendant fails to beat a claimant’s Part 36 offer or a court has awarded costs as such, and as this involved a degree of disapproval, mediators are unlikely to encounter this basis for assessment. ‘Standard basis’ is the norm, and when applied it may mean that the claimant’s lawyer will not recover all their costs from the defendant, and subject to the funding arrangement used, may be entitled to a top-up out of the claimant’s damages. As to costs discussions at mediations, parties are free to agree the quantum of costs if they wish, and solicitors will sometimes sit down, after damages and other terms have been agreed, to discuss and agree these if possible. If they cannot be agreed, the usual terms in a settlement agreement as to costs will be for: ‘the defendant to pay the claimant’s costs on the standard basis subject to detailed assessment if not agreed’. If parties elect to go to detailed assessment, the sum at stake can be so large that mediation might well be contemplated even over the amount of costs that are payable. NHSR has established a scheme for this purpose too.

Problems over costs at mediations: the global offer Reaching agreement on all matters at the mediation, costs as well as any damages, is an attractive proposition for both claimant lawyers and defendants. Claimant lawyers know exactly what they are to receive and if there is any adjustment needed between them and their client, the amount can be ascertained and claimants can know what they are to receive in their hands. Conversely, defendants are usually quite keen to close a file as fully as possible, settling costs as well as damages, if these can be agreed on a reasonable basis. In substantial clinical claims, the parties often agree to deal with costs later on the standard basis, incorporating the above term into the settlement agreement. Problems can arise over old-style CFAs and smaller value claims, where the costs can often seem disproportionate to the damages claimed. Defendant lawyers are usually paid at lower hourly rates than claimant lawyers, agreeing discounted rates by virtue of being on the defendant panel and hoping for repeat business. Of course claimants have the burden of proof and will be involved in 195

Settlement: what is a ‘successful’ clinical mediation? each case for a longer period and have to do more work. But tension can emerge with comparisons between claimant and defendant costs, and the published figures suggest that claimant costs are far higher in aggregate than defendant costs. Certainly in the steadily reducing number of cases where success fees and ATE premiums remain a potential liability for defendants if they settle a clinical claim (so that the claimant has ‘won’ in terms of a ‘no-win-no-fee’ CFA) difficulties can arise at mediations. Claimant lawyers not unnaturally look for full settlement of their costs entitlement in those cases, bearing in mind that the principle of recovering success fees and ATE premiums when a case is won is to compensate them for costs lost on cases which fail. The riskier the case, the higher the success fee and ATE premium that will be sought, and the less enthusiastic a claimant lawyer may feel about agreeing concessions on costs. The problem is that the defendant will view each case on its own merits and not have any interest in whether the claimant lawyer needs to recover costs lost on any other case. The defendant may have persuaded the claimant team that the claimant’s case is risky and might well not succeed at trial. If this is correct, it may be suggested that the lawyer who took on a risky case should share some of the claimant’s pain in contemplating a discounted settlement figure, in having to admit that the case could easily be lost altogether, with no costs payable as it is funded on a ‘no-winno-fee’ CFA. Should the success fee be so high in those circumstances, defendants will ask? If they cannot persuade the claimant to accept a discount on a nominated figure for costs on top of a discounted damages figure, defendants will sometimes resort to proposing a global figure for damages and costs. This forces the claimant team to debate how such a figure should be split between legal team and client, with fees, VAT where applicable, recoupable benefits, interim payments if any, disbursements and experts’ fees having to be deducted before the client receives the balance as compensation. Claimants are very resistant to global inclusive offers for the very reason that they create that uncomfortable tension, amounting to a conflict of interest, between lawyer and client. C claimed against DD Trust for failing to prevent a fall while an inpatient, resulting in a fractured hip. Breach had not been admitted. C had made a Part 36 offer of £75,000 before the mediation, as compared with a scheduled claim of over £150,000. There were arguments also over the extent of attributable damage, as C was elderly. DD Trust offered a global figure inclusive of costs. C rejected this firmly, saying that costs details had been furnished in advance and C would not accept a costs inclusive sum, and standard costs ought to follow any payment of damages. DD Trust then offered the same figure plus £50,000 costs, at which level it settled after further negotiation. 196

Problems over costs at mediations: the global offer *** In a claim by C under the Human Rights Act over the death of a child in the care of DD Trust, the opening joint meeting concentrated on the facts and feelings around the death rather than the legal issues. DD Trust denied liability as claimed and at first would only offer to provide cost-free therapy plus a raft of non-monetary proposals. This was rejected very firmly by C at a plenary. DD Trust then offered an appreciable five-figure global sum, one-fifth of which was for damages and the rest costs. C bid back a global sum more than twice DD’s offer. C’s claim was swiftly settled for a global sum just over halfway between the two opening bids, plus a detailed apology, and a point of contact with DD’s manager for future treatment and information. But sometimes defendants take a tough line because of the weaknesses they perceive in the claim and a deal emerges on that basis. C alleged a spinal injury and psychological consequences following allegedly rough handling by a healthcare professional employed by DD Trust after C had suffered a fit. C’s claim was scheduled at over £3 million. DD Trust valued it at a maximum of just over £1 million, but only if causation was made out: they produced strong expert evidence to suggest that C’s fall while fitting, rather than their employee’s intervention, had caused C’s damage. C’s opening bid was one-third less than the scheduled claim. DD, having proposed a ‘drop hands’, offered an appreciable six-figure global sum, inclusive of costs. C then offered to accept a high six figure sum plus standard costs. A series of bids followed, some inclusive of costs and some not. Agreement was eventually reached at £750,000 inclusive of costs. Parties may fluctuate between separate components and global numbers: The C  family sued DD Trust for negligence and breach of ECHR, Article  2 over the suicide of their minor child who was admitted to DD Trust’s hospital and whom staff failed to supervise properly. Breach was not argued, and the discussions were limited to damages and costs. DD Trust offered £77,000 inclusive of costs, which was rejected by C, who insisted on separation of damages and costs, indicating acceptance of £77,000 plus standard costs. DD  Trust bid £41,000 plus £40,000 costs inclusive, to cover all potential DDs. C  bid damages £67,500 plus standard costs. DD Trust bid £45,000 for family and £40,000 costs. Meanwhile a written apology was drafted and approved. The mediator proposed settlement at £56,500 damages and £42,500 costs. DD  Trust 197

Settlement: what is a ‘successful’ clinical mediation? authorised the mediator to disclose that they accepted those figures, with payment in seven days. C  indicated willingness to accept £56,500 and £55,000 costs. DD Trust offered £105,000 inclusive, which C eventually accepted. What is clear is that parties invariably negotiate in round numbers, however precisely calculated schedules are. It is exceedingly rare for a claim to settle at anything other than a figure with at least three zeros at the end, if not four or five, unless a precise recoupment figure has to be deducted when defining what sum actually passes to the claimant. But the base damages figure will almost certainly have a very round look to it.

‘Success’ in mediation and benefits conferred So reverting to the question of what constitutes success at a mediation, it can be defined in more ways than being ‘just about settlement’. Perhaps success is best measured by the potential benefits that can accrue. The mere engagement of claimants and healthcare providers in the mediation process will provide benefits that may be hard to derive from any alternative process, making communication and the restoration of a necessary relationship possible, at least between patients and healthcare providers generally, and sometimes in a more specific way between the parties directly concerned. Direct benefits, shown by research to be a high priority for claimants, are easily placed on the agenda and become accessible. The process can provide the occasion for apology and acknowledgement, explanation or reassurance about lessons learned, or can design the right occasion as part of the outcome to be delivered to an agreed timetable and in an agreed way. The extra benefit for all is to have the process managed by an experienced mediator operating neutrally, who takes responsibility for running it fairly, safely and sensitively. The mediator thus relieves the parties, and especially their lawyers, of the distraction of process management, so that each team can focus wholly on where their interests lie in relation to the merits of the claim or defence. As to the settlement of the substantive claims themselves, the outcomes are self-determined rather than imposed. It is true that the settlement figure which emerges at a mediation will very rarely be close to what a judge would actually have awarded at a trial. This is because that notional award will have been discounted upwards or downwards to an agreed sum by virtue of the risk discounts that each party thinks is appropriate. Is that ‘a just outcome’? Is an outcome technically ‘just’ only if it is pronounced in open court by a judge, accompanied preferably by an exposition and elucidation of some common law principle? This cannot be so. To choose one’s own outcome is always empowering if done free from undue influence or pressure. There is a sense in which asking a stranger to decide a significant dispute for you is second best, even if some concession has 198

‘Success’ in mediation and benefits conferred had to be made to secure that outcome. Outcomes are, of course, always measurable against what might be imposed at trial, and each party is free to consider the possibility of finding and accepting (or not) what might emerge, always with the option of reverting to court, with no possibility of criticism in the courtroom for having failed to settle at the mediation. Yet the lure of finality is powerful, especially when it is one to which each party has assented. There is a good deal of satisfaction felt when each party perceives that both parties have conceded something of what they were arguing for in order to reach a settlement, and can also say ‘at last it’s over’, on terms that are felt to be reasonably satisfying. This is where the true potential benefits of mediation lie.

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Chapter 10

The future for mediation in clinical claims

There would have been little point in writing this book until now. Despite occasional flashes of interest over the last 20 years, it was not until about 2013 that any consistent signs of practical interest in mediation as a means of settling clinical disputes emerged in England (as already noted, NHS dispute resolution in Wales is separate from England). The effect of the first pilot scheme in 1996–98, the report on which was published after some delay in 2000, soon dissipated, and with the notable exception of the retained organs mediations described in Chapter 8, there were few clinical mediations for the next 10 or 12 years. The external pressure generated by possible costs sanctions for not using alternative dispute resolution, mooted by such authorities as Dunnett v Railtrack plc and Halsey v Milton Keynes NHS  Trust, tended to encourage growing use of round table meetings (RTMs) rather than mediation. This was perhaps a symptom of lawyer reluctance to cede any degree of control of their leadership role in settlement processes to a third party neutral. When it came to discussing mediation, a stand-off between claimant and defendant lawyers became entrenched, with each asserting that while they favoured mediation, it was their opponents who declined to use it. The driver for renewed interest in the mediation process for use in clinical claims was the second pilot scheme initiated by the NHS  Litigation Authority, which has now been transformed into a permanent scheme under the auspices of the rebranded NHS  Resolution (NHSR), to run initially for two years. NHSR is now actively asking its panel firms to propose mediation, and the number of such mediations has grown markedly, with co-operative participation by a good number of claimant firms, even if mediated settlements still represent a small proportion of the 17,000 annual resolutions of claims. The NHSR scheme is the first formal mediation scheme set up by an end-user of civil litigation in any sector, and its results will doubtless be monitored and considered in a wider context. The only other formal schemes are the Court of Appeal Mediation Service and the Small Claims Mediation Service, both attached to the civil courts in different ways, and neither has had much to do with clinical claims so far. The growth of mediation has been relatively slow, although this is not really a cause for surprise among mediation commentators, remembering the slow growth of commercial mediation in the 1990s. It takes time, and this slow growth does not mean that the process has no value. For the 201

The future for mediation in clinical claims use of mediation in civil non-family claims to have grown to well over 20,000 a year from its introduction only 25 years ago is striking. Add to that its deployment in family, community and workplace disputes, and it is clear that mediation is indeed flourishing. At many mediations still, one or more lawyers are experiencing the process for the first time, so direct experience is still being gained of the dynamics of clinical mediations. It would be unsurprising for lawyers on either side of the clinical claims divide not to feel a little unsettled by participating in what is for them a novel process, when they are used to being entirely responsible for both the content of their respective clients’ claims and also for the process within which they are being discussed. The NHSR scheme has raised the profile of mediation in this sector and also ensured that there is a core of mediators who are increasingly experienced in handling them. As this book has demonstrated, it is a challenging field for mediators, who need to be able to cope not only with the technicalities of law and medicine, but also the intense human aspects to such claims. For claimants and their families, there is the anger about what went wrong and how badly and slowly concerns were handled; grief and depression about loss; fear for the future over lost amenity and physical capacity; and sometimes guilt about not intervening to prevent harm. For healthcare professionals there is the upset and anger that someone has accused them of doing less than their best, provoking a mixture of denial and concession and, either way, a period of challenge to concentration and self-confidence. Not every mediator will want to become involved in such demanding work, but a growing number are doing so. At the same time, claimant and defendant solicitors and barristers are becoming drawn into the process, doubtless reluctantly and even nervously at first, but again growing in experience of how mediation works and how to make it work effectively for clinical claims. Should the development of mediation in this sector be left to organic growth, with supply broadly meeting demand, on whatever scale that demand is based? Things are never so simple, and as usual there are strong currents of contrary opinion and interest at work. There has always been a tension in this sector, where solicitors at least (and quite a number of barristers) only work for claimants or defendants. Whenever mediation has been raised, each side of the divide has accused the other of declining to agree mediation when they have proposed it. Now that mediation is being proposed more frequently by the NHS, this has led to the articulation of opposition to the use of mediation in principle. An instance of this emerged following a hearing in October 2017 before the Public Accounts Committee (PAC) of the House of Commons. The PAC was investigating the huge cost of clinical negligence claims on the NHS, demanding inter-departmental action to reduce it and pressing NHSR to explain what it was doing to reduce the problem. The NHSR mediation scheme was mentioned, and the Chief Executive of NHSR found herself making the old claimant/defendant divide 202

The future for mediation in clinical claims assertion. Talking about the slow take-up of the new mediation scheme, she said: ‘To be frank, we have found [the mediation scheme] quite difficult to get off the ground, particularly because there has been some resistance from claimant lawyers whose preference is for the more formal route’. This suggestion provoked a fierce reaction along traditional lines from some claimant lawyers. A typical example appeared in a blog article by Ali Malsher on the website of Anthony Gold (a claimant law firm), in October 2017, in which she wrote: ‘There are very few cases of clinical negligence which require mediation. This is not because there is something fundamentally wrong with mediation. It has its place. There are plenty of cases in civil proceedings and family proceedings where mediation may be a very valuable tool. In the face of cases where the solicitors on both sides are experienced and can see the issues that are in dispute, there is no reason to involve a mediator and to incur that cost. When Ms Vernon [the CEO of NHSR] indicates that two thirds of cases are kept away from the court, that is because a substantial amount of those settle without the use of mediation. Instead of the NHS attacking claimant lawyers for the costs that are being incurred, it would be more helpful if there were earlier admissions of liability. It would similarly be more helpful if the medical records were provided in a timely manner in good order. It would also be helpful if the process was quicker. Once a letter is sent to the other side, detailing the claim, the NHS take four months to respond. The process is long and, as a result, costly. Mediation in clinical negligence is a red herring’. And so on. It should be noted that this is almost certainly not a point of view limited to some claimant lawyers, even if defendant lawyers do not express it: the views in this article are specifically expressed on behalf of all lawyers engaged in clinical negligence litigation, who are all said to be capable of settling cases without mediation. However, several assertions are open to serious challenge. Firstly, the suggestion that it is only among the ranks of claimant and defendant clinical negligence lawyers that there are practitioners experienced enough to settle cases without a mediator will surprise lawyers and mediators who have been involved for many years in using mediation to settle commercial, employment and professional indemnity cases. In those sectors, mediation is effectively a normal, perhaps even a preferred, resolution process, where both the process and the mediator are seen as adding considerably to the value of discussions. Is it objectively credible that there is anything about clinical claims that make a mediator less useful? When set against the research into what claimants and clinicians really want when clinical claims are 203

The future for mediation in clinical claims made, it seems much more probable that a mediator would be of even more value than in a more commercial context. Secondly, the article implicitly acknowledges that the current position as to the cost of resolving clinical disputes is unsatisfactory. The solution is said to be earlier admissions and quicker release of records, rather than earlier and better engagement in secure settlement discussions. Whether either of these options is feasible or would make a material difference needs to be researched. For instance, the four-month period for defendants to reply to a claim is enshrined in the Pre-action Protocol, and is often extended with the consent of claimant lawyers in difficult cases. Defendant lawyers often comment that claimants can take much of the three-year limitation period to assemble their case, whereas they must reply within four months. Mediators would observe that far too many cases are reaching mediation four or five years after the events under consideration, sometimes even longer, by which time the effect of those proposed improvements will have dissolved long since, while the cost of protracted litigation keeps mounting for both claimant and defendant lawyers. Thirdly, of course cases have been settling since before mediation started to be used, and continue to do so. The old-style NHSLA (rather than NHSR) would probably have to concede that, until four or five years ago, this was as much to do with defendants not proposing mediation as claimants declining. However, the right question is not who is responsible for agreeing or declining to mediate. The question remains, can clinical claims now be settled earlier and less expensively in terms of human and financial cost? Does the length of time it takes to reach settlement in every case deliver what claimants and healthcare professionals want, and what society and civil justice need of it? Is mediation one solution to the unarguable problem confronting the NHS in dealing with clinical claims reserved at £60 billion? The question is no longer being left to the inclinations of the legal profession. It is too huge an issue for this to be possible any longer. It is being asked by government, parliament, judicial policy-makers and judges, and society at large, as will be discussed below. Perhaps the most remarkable thing about the whole Anthony Gold article is that it makes no mention whatsoever of what this or any other lawyer’s clients need or want. It is written on the basis that claimant and defendant lawyers are perfectly able to settle disputes without any external help from a mediator. No mention is made of the needs of patients and their families or clinicians and other NHS staff. It is as if the system is there for the lawyers and not their clients. Contrast that with NHSR’s aim for the scheme, as set out in its 2016–17 Annual Report: ‘The service is designed to support patients, families and NHS staff to work together towards resolving incidents, complaints, legal claims and costs disputes, avoiding unnecessary expense and the potential emotional stress of going to court. Mediation provides injured patients and their families with an opportunity for face-to-face explanations and apologies when things go wrong. 204

The future for mediation in clinical claims We will continue to closely monitor the service to ensure positive benefits from greater uptake’. This, on the contrary, makes no mention of lawyers. The obvious rhetorical question to ask is for whose benefit does the civil justice system, and the opportunity to make and defend clinical claims, exist. Its answer does not in any way need to displace lawyers from a vital and central role in the resolution of clinical disputes when mediation is deployed. As any lawyer experienced in representing clients at mediations will testify, theirs is a challenging and satisfying role which is in no way usurped by the mediator, whose job is to generate greater security for the discussions so as to improve their scope and responsiveness to the needs of the parties, and to improve the quality and efficiency of negotiations. Mediators have a different role from lawyers at mediations, which it is hoped is made clear by this book, and both are vital. The Public Accounts Committee’s reaction to the horrendous cost of clinical claims in its report of November 2017 is to require bolder measures to reduce negligence in the first place, but also (in relation to claims resolution) swifter and more effective claims handling. As to mediation, their report reads: ‘NHS  Resolution has also introduced a voluntary mediation service as a way of resolving claims without formal court proceedings. NHS  Resolution told us that only 71 cases have used this service, with the new service meeting resistance from some claimant lawyers who prefer the more formal route for resolving claims. The Ministry of Justice acknowledged that alternative dispute resolution, including mediation, is currently not working very well in the civil justice system and that the Civil Justice Council has suggested compulsory mediation in some areas of civil business. Tackling the rising costs of clinical negligence requires action by more than one government department, but currently there is no overarching cross-government approach to tackling this issue. The Department of Health and the Ministry of Justice told us that they work together closely, and the Ministry said it would like to set up a joint programme board between the Departments and be more creative in their thinking on issues such as the law of damages and alternative dispute resolution as it applies to health. Countries which have most successfully controlled clinical negligence costs have carried out legislative reform’. The reference to the Civil Justice Council’s view is presumably to the interim report of its working party, which is discussed below. There is also a coded warning of the need to look at capping damages for clinical claims, an approach tried in several US State jurisdictions. Such an approach would limit the damages that the court could award, modifying the principle of 205

The future for mediation in clinical claims tort damages of restitutio in integrum – putting a successful claimant as far as possible into the position into which they would have been had they not sustained that negligently caused damage. The PAC is expecting an update from government on steps taken to improve the situation. In its report published in June 2017 entitled The Rising Costs of Clinical Negligence: Who pays the Price? the Medical Protection Society (MPS) said: ‘… there should be reasonable compensation for those harmed due to clinical negligence, but [that] this must be balanced against society’s ability to pay … if the current trend in England continues, the balance will tip too far’. Its proposed reforms are: • a limit on future care costs based on the realities of providing home-based care; • the use of national average weekly earnings to calculate damages awarded, instead of a patient’s weekly earnings; •

the introduction of an ultimate 10-year limit between the date of an adverse incident and when a claim can be made (with judicial discretion in certain cases);

• a minimum threshold for cash compensation relating to claims for minor injuries; • changes to provisions meaning the patient would need to seek the court’s approval to withdraw from a claim less than 28 days before a trial: a fixed recoverable costs scheme for clinical negligence claims up to a value of £250,000; •

changes to the rules relating to claimant expert reports covered ATE insurance, such as a limit on the number of expert reports covered, or a cap on costs;

• consideration of ways to reduce expert fees, such as capping fees or the number of experts that can be instructed; • an increase in the small claims track threshold for clinical negligence claims up £5,000. It should be noted that MPS is also proposing to introduce a mediation pilot scheme in 2018. Many, if not all, of these ideas will doubtless be fiercely opposed by claimant lawyers, and perhaps defendant lawyers too. But again the issues are too big, and the size of the deficits on the NHS and MDO claims accounts too huge, for it to be likely that the current position will be left unchanged. What then of the view taken by the civil justice system about the way clinical claims should be conducted in the future? Judges since Lord Woolf, and perhaps even before that, have often expressed concerns about claims 206

The future for mediation in clinical claims conduct in general, and in the clinical negligence sector in particular. After all, the fundamental concept of the CPR was the removal of control of case management from the legal profession to the courts, because it was felt (rightly or wrongly) that lawyer control had damaged the civil justice system and had thus failed their clients. Proportionality as a principle, and costs budgeting as a practice, were introduced because it was felt (rightly or wrongly) that legal costs needed tighter control. The right to penalise unreasonable litigation conduct, whether before or after issue of proceedings, was introduced because it was felt (rightly or wrongly) that greater disciplinary powers were needed to outlaw inappropriate legal practices. The CPR did not get everything right first time, most vividly illustrated by the fact that there have to date been over 90 amendments to the rules since they were enacted in 1998. The Jackson reforms, encapsulated in the Civil Procedure (Amendment) Rules 2013, are an even clearer illustration of the perceived need for further major intervention in the way civil justice works, and their impact on the way lawyers are remunerated in clinical claims was very significant. The rush to issue as many clinical claims as possible before the 1 April 2013 deadline shows how much practitioners preferred the old regime. The Jackson reforms broadly made life tougher for claimant lawyers, especially by depriving them of the opportunity to recover success fees and ATE premiums from the NHS when a case was won or settled favourably, and also by toughening the consequences for not observing the rules. There are a number of other significant initiatives that will impact on the shape of civil justice in the near future, albeit in different ways for clinical claims. The first is the Briggs Report on Civil Courts Structure. In the Final report Lord Briggs recommends that personal injury and clinical claims should be excluded from the Online Solutions Court (OSC) if they would otherwise fall within the fast-track or multi-track. Most clinical claims are multi-track, so this is likely to keep them excluded even if the small claims track limit is raised. That might seem to make the Briggs report irrelevant to clinical negligence, as does the debate about whether the OCS’s jurisdiction should be at, below or above £25,000. But his report is not irrelevant to the position of mediation within the civil justice system, and his comments are worth noting, as they could feed into future thinking about resolution processes in the clinical sector. He comments generally that: ‘… there appears to be a particular shortfall in the potential penetration of mediation in relation to personal injuries and clinical negligence claims. Feedback from the International Mediation Institute (to a board meeting of which I  was kindly invited in London in May 2016) suggests that this particular shortfall is not a consequence of the underlying nature of those types of dispute, because personal injury and clinical negligence claims are widely and successfully mediated in other countries’. 207

The future for mediation in clinical claims As to the debate over the link between access to justice and recoverable costs, he says: ‘A  recoverable costs regime is, on its own, by no means a clear promoter of access to justice. On the contrary, it contains two elements which tend to do the exact opposite. The first is that the risk of having to pay the opposing party’s costs is a powerful disincentive to going to court at all, particularly in the pursuit of small to moderate claims. The second is that the prospect of recovering costs from the opposing side is a powerful economic incentive to lawyers driving up the cost of litigation. This can apply to claims of all sizes. Professor Adrian Zuckerman has been saying this since the mid-1990s, but only recently have his warnings been heeded. An appreciation of the truth of those two points lies behind current moves to bring about a large increase in the areas of civil litigation covered by a fixed recoverable costs regime. But a fixed or budgeted recoverable costs regime, backed by Qualified One-way Costs Shifting (‘QOCS’) plus uplifted damages has, in the sphere of personal injury (including clinical negligence) litigation been a powerful promoter of access to justice, in an area where the playing field is at first sight sharply tilted against the individual claimant, facing a sophisticated insurance company as the real (even if not nominal) defendant [he does not mention NHSR or the MDOs]. It was the very asymmetry inherent in such litigation which led Jackson LJ to recommend such a regime for personal injuries’. The final area of his report relevant to the clinical sector relates to the position of pre-issue ADR, where he discusses whether defendants deliberately await the issue of proceedings either to see if the claimant is in earnest and is prepared to pay what now is a very high issue fee, or whether cheaper post-issue ADR services attached to the court might be deterring defendants from mediating before issue. Lord Briggs does recommend that court-attached mediation schemes should be restarted if possible. There is little current sign that NHSR are, as a matter of policy, refusing to mediate before issue. Indeed, the writer’s own experience of recent mediations is that they are being convened rather more frequently at that stage of a claim. Lord Briggs says: ‘I  am not persuaded that this risk of deterrence should lead the court to turn its back on providing or sponsoring culturally normal conciliation (to use an umbrella term preferable to ADR) for those disputes which have led to the issue of proceedings, provided always that everything is done first to encourage wouldbe litigants to seek to settle their disputes before going to court. A high proportion of civil disputes which do lead to the issue of proceedings continue to settle before trial, by the use of mediation or other means of conciliation’. 208

The future for mediation in clinical claims While his comments are really about the case to be brought within the ambit of the OSC, it is possible that court-annexed mediation may be available for smaller clinical claims in the future, even though the NHSLA pilot took the view that lower value clinical claims are often just as intractable and emotionally charged and difficult to settle as larger ones. Secondly, Lord Briggs usefully reviews1 the most significant other activities in civil justice which might impinge upon his recommendations. These include the question of whether fixed recoverable costs will be imposed on some or all clinical cases, following Jackson LJ’s further report in July 2017; revision of damages-based agreements as a means of funding litigation; the possibility of a Contingency Legal Aid fund; and a review of BTE insurance commissioned by the Civil Justice Council. These are all still works in various stages of progress, and will not be discussed further here, although the first of these – if and when introduced – would have a major impact on this sector. Birth injury claims, which are by far the biggest component in terms of damages paid by the NHS, will be capable of management through the Rapid Resolution and Redress Scheme, due to come into effect from April 2019. What impact this will have on the conduct of birth injury claims, at least while it remains possible to pursue them through the courts, where damages if awarded are colossal, can only be assessed once it comes into being. Another initiative from the Civil Justice Council has been to set up a Working Party to look in more detail at how mediation and ADR might be deployed more fully for the benefit of the courts and their users. Its interim report was published in October 20172. The author of this book must declare an interest as being a member of that working party. A final report, after consultation and public debate, can be expected late in 2018. It is presumably this report to which the PAC Report refers, when it talks about the possibility of ‘mandating’ mediation in clinical claims, although this is an interim report canvassing options for consultation and certainly its interim recommendations do not go as far as proposing mandatory mediation for clinical claims. But it is right that the main link between the Briggs reports and the working party can be found in the question of whether mediation should be mandatory or not. In his Preliminary Report, Lord Briggs said: ‘the civil courts have declined after consideration over many years, to make any form of ADR compulsory. This is, in many ways, both understandable and as it should be’. The Working Party’s comment on that and his report’s recommendations in general is that: 1 In Chapter 3 entitled ‘Work in Progress’. 2 ADR and Civil Justice: interim report (Civil Justice Council, October 2017).

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The future for mediation in clinical claims ‘we support the Briggs recommendations save only that we wish to open up the last issue, compulsion, for further discussion’. The CJC Working Party felt that it ought to stimulate a debate about this in the absence of any recent open debate about automatic referral of cases to mediation, in that some judicial interventions on this topic have not seemed necessarily ‘understandable’ to others, nor necessarily accepted that this is ‘as it should be’, even assuming any identifiable degree of unanimity among judges on the topic once fully debated. The Working Party draft report summarises its position thus: ‘2.6. Nevertheless our present view is that the Court should promote the use of ADR more actively at and around the allocation and directions stage. We think that the threat of costs sanctions at the end of the day is helpful but that the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken. We think there should effectively be a presumption that if parties have not been able to settle a case by the directions stage, they should be required to engage in some form of ADR. 2.7. Some of us, a minority, would go further and introduce ADR either as a condition of access to the Court in the first place or later as a condition of progress beyond the CCMC’. After a brief reminder that value at stake is not necessarily a good indicator of complexity in clinical claims, the report canvasses the possibility of different court-required ADR approaches for different sectors, commenting: ‘If there is one sector where a degree of compulsion to use mediation might be appropriate, perhaps on a pilot basis, it might be this [ie clinical negligence]. Here a safe confidential process enables fractured communications between patient and family and the NHS to be restored and extra-legal non-monetary benefits are constantly of importance of the kind deliverable by mediation, but frankly not by litigation or indeed RTMs’3. As to any requirement to mediate pre-issue as the price of being able to issue proceedings, the report sees no easy fix. Clearly no one should have to mediate an ordinary monetary claim where there is no defence. In clinical claims, however, where other objectives besides money may be sought, even if the claim is of low value and undefended, there may be some point in mediating it to save the trouble and expense of issue, and to provide some kind of outlet to parties. The report calls for more consistent language in the clinical negligence Pre-action Protocol and 3 Para 3.15.

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The future for mediation in clinical claims firmer expectations that its provisions relating to ADR are observed before issue, if necessary with enforcement post-issue. The report notes that there is already provision for compulsory conciliation through ACAS before an application can be filed in the Employment Tribunal, so that the theoretical objection to pre-issue ADR being a condition of proceeding has already been set aside. Costs sanctions are seen as providing only limited incentives for mediating, especially as very few clinical claims actually reach a trial. The report suggests that there should be firmer direction within case management towards mediation, with an expectation that it should have been tried before any trial unless there is a very good reason for not deploying it. While the report found little useful material from what limited research it was able to do about foreign jurisdictions, it does report a procedure used in British Columbia whereby if one party serves a formal notice to mediate on the other, the court takes steps to require that a mediation is convened. This relatively small extension to the current case law position in English law as set out in Halsey and PGF, may commend itself. If adopted, and NHSR or an MDO instructed their solicitors to serve such a notice, or indeed a claimant, a mediation would have to take place. This is only an interim report and the results of consultation are not yet available, let alone any indication of what the Working Party’s final conclusions and recommendations will be, bearing in mind too that the Civil Justice Council to which it reports is an advisory body, albeit one chaired by the Master of the Rolls. Whether it will see clinical claims as a sector in which some kind of pilot requirement for ADR, either pre-issue or pre-trial, is not clear. Perhaps all that can be said is that it is certainly one of the sectors of court business where this is more likely to be considered than others. There are other initiatives which will impact on the shape of dispute resolution in clinical claims in years to come. Fixed recoverable costs are in an advanced stage of discussion, with the possibility of an identified tranche of costs being allocated for mediation. An entirely external arbitration process said to offer binding resolution much more cheaply than litigation is being actively marketed by PIcARBS, with a pilot being set up for personal injury matters. Whether the courts will react adversely to a competitor to a large proportion of its civil court business, or will take steps to incentivise claimants and insurers to stay within the public court system, remains unknown. But all these initiatives and policy discussions serve as a reminder that the most powerful driver underpinning litigation practice is economic, and choices will always be made by practitioners and policy-makers on the basis of protecting their position from chill financial winds. The threat of costs sanctions has been the main technique used to discipline parties and their advisers into considering mediation, and the recent development of mediation use encouraged by NHSR has been achieved by requiring their 211

The future for mediation in clinical claims own lawyers to make it happen, as part of their panel-retained obligations. Claimant lawyers have had to take such invitations seriously because of the court decisions in Halsey and PGF. Maybe a closer look could be given to incentives rather than sanctions. It will be interesting to see whether the work of the CJC Working Party throws up some novel ideas on these lines. So there are a number of external influences on whether mediation will, as a matter of policy, be integrated more firmly into the dispute resolution of clinical claims in future. To enshrine automatic referral of mediation into this sector will undoubtedly provoke considerable opposition. Yet can it be said that the present situation is satisfactory? There are policy-makers who will not ignore the current economic realities for the NHS. If wider use of a different process might make earlier and better resolution possible, it may be pressed into service whether those who deliver it professionally like it or not. The better way would be for all to commit to mobilising the systematic voluntary use of mediation far more than happens at present, with an eye to looking at whether it actually delivers what those with clinical disputes actually want to achieve, especially if mediation furnishes a number of objectives desired by the parties which cannot ultimately be obtained by using the civil justice system.

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Postscript

Two important developments worth further comment occurred just before this book went to press.

The Medical Protection Society (MPS) pilot mediation scheme As prefigured in the main text, the MPS has now announced the start of its own mediation pilot, to be administered by CEDR and utilising CEDR’s panel of clinical negligence mediators who have gained experience by mediating NHS cases. MPS is the first of the main MDOs to run its own scheme, though both it, the MDU and the MDDUS have previously mediated their own cases ad hoc, and occasionally been involved as codefendants in multiple defendant cases administered under the NHSR scheme. The detailed arrangements remain to be announced. Currently it is understood that in principle MPS may propose mediation at any stage in the claims process. There is no one set of criteria based around claim value, complexity or the nature of the disputed matters. Early mediation may well be considered pre-proceedings, especially where breach is not in issue, and also where a claimant is in person or (whether represented or not) is seen to have unrealistic ambitions. So mediation may be used to seek early settlement, or to narrow issues, or to seek to persuade a claimant that there is no case to answer, albeit coupled perhaps with the provision of non-compensatory extra-legal benefits when available. Other likely areas for mediation are in fatality claims and others with a high emotional component, those where the claimant has a limited life expectancy, and where it is seen as important for claimants to ‘have their say’. Once the pre-action protocol has been complied with, mediation might again be considered both where breach is denied and also where it becomes clear that a case should be settled, especially where claimants are reluctant to respond and to disclose relevant material before issuing proceedings, for instance over expert reports or silence in the face of a Part 36 offer. Once proceedings have been issued, again mediation may be proposed where evidence has been exchanged but there is no further progress apparent in narrowing issues. The scheme may also be used to deal with substantial costs disputes.

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Postscript Further details will doubtless emerge in due course, but the new scheme is further evidence of the advance in thinking in the clinical sector as to the usefulness of mediation as a process which enables those in dispute to talk safely to each other and to see whether satisfactory proposals to settle might emerge sooner than litigation might deliver, and on a wider basis than mere compensation.

NHSR Scheme and confidentiality NHSR has promulgated an important amendment to clause 4.1 of the standard mediation agreement to be used for NHSR Scheme mediations. It reads as follows: ‘4 Every person involved in the mediation 4.1 will keep confidential all information arising out of or in connection with the Mediation, but not including the fact that the Mediation is to take place or has taken place or where disclosure is required by law to implement or to enforce terms of settlement or to notify their member organisation or the Department of Health. For the avoidance of doubt, there is no requirement to keep the fact and terms of settlement confidential unless otherwise agreed by the parties’. The effect of this is to remove any fear that claimants, or indeed any party, might feel that they are prevented from disclosing the fact and terms of settlement to anyone unless there is specific agreement to the contrary. In the past there has been a concern that parties might be gagged from telling others what the agreed outcome of a mediation was. This is no longer the case. What is essentially protected from disclosure is what happened during the mediation process itself, between signing the mediation agreement (and earlier in effect, when pre-mediation communication is usually treated as confidential by oral agreement between mediators, lawyers and parties) and documents like case summaries brought into existence for the mediation. This may remain significant even where a case settles: how each party moved towards agreement might still be subject to confidentiality although even this may not matter too much. What remains vital is that everyone should keep confidential the content of a mediation where settlement is not achieved. The security of discussions and the reason for not continuing the mediation or rejecting terms offered must remain protected from view for all purposes, otherwise the safety of engagement in the mediation might be compromised. Of course parties can agree tighter confidentiality as to the fact and terms of any agreed outcome. If agreement cannot be reached on these aspects as well as the actual terms of settlement, then the mediation remains unsettled and confidential.

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NHSR Scheme and confidentiality The Chapter 3 discussion of confidentiality terms in mediation agreements should be read in the light of this development. Whether a similar relaxation will be seen to be appropriate in all clinical mediations remains to be seen. It is easier for a large NHS Trust to go public on admitting that a claim has been settled than perhaps it might be for an individual GP or consultant who has a personal reputation to preserve. If, however, it is right that even with the relaxed provision, a party is free to decline to settle if agreement over disclosing the facts and terms of settlement cannot be reached, the difficulty may be more apparent than real. Certainly any advance sense of being gagged as to what emerges from a mediated settlement will discourage claimants and their advisers from participating in the process. So NHSR’s new default position is greatly to be welcomed.

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Appendix A

CEDR Mediation Agreement1

THIS MEDIATION AGREEMENT    dated

IS MADE BETWEEN

Party A:

Party B:

(together referred to as ‘the Parties’) The Mediator:

(a term which includes any agreed Assistant Mediator or Mediator Observer) and CEDR of International Dispute Resolution Centre, 70 Fleet Street, London EC4Y 1EU in relation to a mediation to be held on at

(‘the Mediation’)

IT IS AGREED by those signing this Agreement THAT:

1 Reproduced with the kind permission of CEDR. For further information please visit www. cedr.com.

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CEDR Mediation Agreement The Mediation 1  The Parties agree to attempt in good faith to settle the dispute at the Mediation and to conduct the Mediation in accordance with this Agreement and consistent with the Mediation Procedure (National Health Service Mediation) and the Civil Mediation Code of Conduct for Mediators current at the date of this Agreement. Authority and status 2  The person signing this Agreement on behalf of each Party warrants having authority to bind that Party and all other persons present on that Party’s behalf at the Mediation to observe the terms of this Agreement, and also having authority to bind that Party to the terms of any settlement. 3  Neither the Mediator nor CEDR shall be liable to the Parties for any act or omission in relation to the Mediation unless the act or omission is proved to have been fraudulent or involved wilful misconduct. Confidentiality and without prejudice status2 4  Every person involved in the Mediation: 4.1 will keep confidential all information arising out of or in connection with the Mediation, but not including the fact that the Mediation is to take place or has taken place or where disclosure is required by law to implement or to enforce terms of settlement or to notify their member organisation or the Department of Health. For the avoidance of doubt, there is no requirement to keep the fact or terms of settlement confidential unless otherwise agreed by the parties. 4.2 acknowledges that all such information passing between the Parties, the Mediator and/or CEDR, however communicated, is agreed to be without prejudice to any Party’s legal position and may not be produced as evidence or disclosed to any judge, arbitrator or other decision-maker in any legal or other formal process, except where otherwise disclosable in law. 5  Where a Party privately discloses to the Mediator any information in confidence before, during or after the Mediation, the Mediator will not disclose that information to any other Party or person without the consent of the Party disclosing it, unless required by law to make disclosure. 6  The Parties will not call the Mediator or any employee or consultant of CEDR as a witness, nor require them to produce in evidence any records or notes relating to the Mediation, in any litigation, arbitration or other formal process arising from or in connection with their dispute and the Mediation; nor will the Mediator nor any CEDR employee or consultant 2 Note the discussion in Chapter 3 about options as to the confidentiality of the mediation.

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CEDR Mediation Agreement act or agree to act as a witness, expert, arbitrator or consultant in any such process. If any Party does make such an application, that Party will fully indemnify the Mediator or the employee or consultant of CEDR in respect of any costs any of them incur in resisting and/or responding to such an application, including reimbursement at the Mediator’s standard hourly rate for the Mediator’s time spent in resisting and/or responding to such application. Settlement formalities 7  No terms of settlement reached at the Mediation will be legally binding until set out in writing and signed by or on behalf of each of the Parties. Fees and costs of the Mediation 8  The Parties will be responsible for the fees and expenses of CEDR and the Mediator (‘the Mediation Fees’ subject to an agreement with the claimant to that effect being in place) including any provision for additional hours if the mediation process extends beyond the allocated hours. 9  Each Party further agrees that any court or tribunal may treat both the Mediation Fees and each Party’s Legal Costs as costs in the case in relation to any litigation or arbitration where that court or tribunal has power to assess or make orders as to costs, whether or not the Mediation results in settlement of their dispute. Legal status and effect of the Mediation 10  This Agreement is governed by the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to decide any matters arising out of or in connection with this Agreement and the Mediation. 11  The referral of the dispute to the Mediation does not affect any rights that exist under Article 6 of the European Convention of Human Rights, and if their dispute does not settle through the Mediation, the Parties’ right to a fair trial remains unaffected. Signed Party A Party B Mediator CEDR

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Appendix B

CEDR Mediation Model Procedure, 2018 Edition1

1  What is mediation? Mediation is a flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution. The principal features of mediation are that it: • involves a neutral third party to facilitate negotiations; •

is quick to set up and is inexpensive, and, in most circumstances, is without prejudice and confidential;

•

involves party representatives with sufficient authority to settle;

•

is flexible, enabling the process to be designed and managed by the Mediator to suit the parties, in consultation with them;

• puts the parties in control (unlike litigation/arbitration); • enables the parties to devise solutions which are not possible in an adjudicative process such as litigation or arbitration, and which may benefit all the parties, particularly if there is the possibility of a continuing relationship between them; • can be used in both domestic and cross-border disputes, twoparty and multi-party disputes, and whether or not litigation or arbitration has been commenced. Many commercial and government contracts now require parties to use mediation in accordance with CEDR’s Model Mediation Procedure. While mediation is essentially flexible, the Model Procedure set out in this document, taken with the CEDR Model Mediation Agreement, will give sufficient certainty to enable the process to be set up and used. Any contemplated or existing litigation or arbitration in relation to the dispute may be started or continued despite the mediation, unless the 1 Reproduced with the kind permission of CEDR. For further information please visit www. cedr.com.

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CEDR Mediation Model Procedure, 2018 Edition parties agree or a Court orders otherwise. If settlement terms cannot be agreed through mediation, the parties can revert to litigation or arbitration.

2  Referral to mediation Referral of a dispute to a mediator or to CEDR for mediation may be as a result of: • voluntary referral by all parties; •

referral by one party who asks CEDR to secure the involvement of other parties into a mediation;

•

responding to a Pre-action Protocol, Court Rules, a Court Order or a recommendation by a judge before trial or appeal;

•

the provisions of an ADR clause in a commercial or government contract requiring the use of mediation as a step in the parties’ agreed dispute resolution process;

• the provisions for use of mediation within an industry or public sector policy framework.

3  Choosing the mediator The parties may choose their own mediator directly or from any CEDR panel of mediators, or may ask CEDR to nominate one or to recommend names from whom they can choose one to act as the mediator for a dispute in accordance with the wishes of the parties or under contractual agreement or the provisions of any relevant Court Order. Where there is a contractual or court requirement for the parties to act under the auspices of CEDR, CEDR will appoint a mediator where the parties fail to agree on a name within 14 days of notice of the dispute. CEDR will only nominate or appoint a mediator who, in its view, possesses the relevant skills and experience to mediate the dispute for the parties effectively, and who will comply with the CEDR  Code of Conduct for Third Party Neutrals (‘the Code’). Any nominated mediator and all other parties to the mediation will be required to confirm immediately to CEDR if there is any matter which might prevent the nominated mediator from complying with the Code in relation to the mediation of the dispute, such as a conflict of interest. CEDR or the mediator will then notify all the parties of any such matter immediately it is disclosed to them. If required by any of the parties or the Court, or under the published terms of any CEDR dispute resolution scheme, CEDR will appoint a mediator to be used in relation to a dispute, subject always to that mediator not being prevented from complying with the Code in relation to the mediation of that dispute. 222

Preparation for the mediation As part of CEDR’s role is to develop the field and its professionalism, the parties may be asked by CEDR to approve the appointment of an observer mediator to attend a mediation at no cost to the parties, provided that the observer mediator also appropriately complies with the Code in respect of the mediation. The identity of any observer mediator proposed to attend the mediation will be made known in advance of the mediation to the parties, who are free to object to any such nomination or decline any such appointment. The mediator’s signature on the mediation agreement binds any observer mediator to its terms. In appropriate cases CEDR may recommend, or the parties agree, the use of co-mediators or the appointment of a neutral expert to advise the mediator on technical matters. If co-mediators are chosen by the parties, all references to the mediator in a document are taken to indicate the plural. CEDR recommends however, that documents related to the process be adapted to refer to the Mediator in the plural and that both mediators be signatories to the Mediation Agreement. The circumstances in which a co-mediator may be appropriate are: • The number of parties or number of attendees within a party is such that it would be of benefit to have co-mediators • Where a specific technical expertise is required. • The varying nationalities and cultural backgrounds of the parties. This is separate to the potential need for a translator. • Personal preference of the parties

4  Preparation for the mediation CEDR or the mediator, when agreed or appointed, will make the necessary arrangements for the mediation as required or agreed by the parties or under the terms of any scheme, including: •

drafting the agreement, submitting it for approval by the parties and preparing the final form for signature, incorporating any agreed amendments if requested;

• compiling names and roles of attendees for the circulation of a participants’ form before the mediation takes place; • facilitating agreement as to the date, start time and providing venue arrangements for the mediation when necessary; •

organising exchange of case summaries and document bundles between the parties and the mediator when requested;

• setting up any pre-mediation meetings agreed by the parties and the mediator if requested. 223

CEDR Mediation Model Procedure, 2018 Edition The parties will: • agree the appointment of the mediator or a process to select or appoint the mediator; • agree with CEDR the date, venue and start time for the mediation; • agree the terms of the mediation agreement; •

pay CEDR’s fees and expenses as agreed under CEDR’s Terms and Conditions of business;

• each prepare and exchange a case summary for the mediation in respect of their approach to the dispute at the mediation and endeavour to agree with all other parties what documents are needed for the mediation; • send to the mediator directly, or to the location indicated by CEDR, a copy of their case summary and a copy of the bundle of documents at the earliest convenience, usually no less than one week before the date set for the mediation, making clear: –

whether case summaries have or have not yet been exchanged;

–

whether or not and when CEDR or the mediator is to effect exchange; and

–

whether all or any part of any case summary or documentation is intended to be confidential for CEDR and the mediator only.

Late submission of documents might call into question that party’s good faith involvement in the mediation process, and have detrimental effects on the prospects of success of any mediation; • notify the mediator and CEDR of the names and roles of all those attending the mediation on their behalf, so that CEDR can inform all parties and the mediator in advance of the mediation; • ensure that a lead negotiator with full authority to settle the dispute attends the mediation to sign the mediation agreement and any potential settlement agreement; • alternatively notify the mediator, CEDR and (unless very good reason exists to the contrary) the other parties of any limitation on authority to settle, for instance lack of legal capacity, or the need for ministerial committee, court approval, or board ratification, in which case the lead negotiator will need to have power to recommend acceptance of any settlement. Late disclosure of limited authority to settle can call into question that party’s good faith involvement in the mediation process, and have detrimental effects on the prospects of success of any mediation. 224

The mediation agreement The mediator will: • ensure at all times that the Code is complied with in respect of the mediation of the dispute, reporting any conflict of interest or other relevant matter, if any, to CEDR and (subject to any question of confidentiality or privilege) the parties, immediately it emerges; •

attend any pre-mediation meetings on terms and agenda agreed by the parties, or proposed by the mediator;

• read each case summary and document bundle submitted in advance of the mediation by the parties; •

make contact with a representative of each of the parties before the mediation to assist in preparation for the mediation and discuss issues arising.

5 Documentation Documentation intended to be treated as confidential by the mediator or CEDR (such as a counsel’s opinion, an undisclosed expert report, a draft proof of evidence or a confidential briefing for the mediator) must be clearly marked as such, and will not be circulated further without express authority. One of the advantages of mediation is that its success is not dependent on exhaustive disclosure of documents. Bundles can usually be relatively limited in size, containing only key documents, and case summaries can be quite brief, and can, to advantage, be prepared jointly by the parties. The parties can ask CEDR to effect simultaneous exchange of case summaries if required. While documents brought into existence for the purpose of the mediation, such as case summaries, are clearly privileged from later production in other proceedings, the fact that a document which is otherwise disclosable in proceedings is produced for the first time during the mediation does not normally confer privileged status on it. The parties must take legal advice on such matters if they arise.

6  The mediation agreement The agreement to mediate provides the essential legal basis for the mediation. Its signatories (the parties to the dispute, the mediator and CEDR) all agree by signing it that the mediation is to be conducted consistent with both this CEDR Model Mediation Procedure and the Code. A  draft mediation agreement will be sent for approval to the parties as part of the preparation process for the mediation, and any proposed amendments can then be discussed and inserted if agreed by all. The 225

CEDR Mediation Model Procedure, 2018 Edition mediation agreement will normally be signed at the beginning of the mediation day on behalf of each of the parties and the mediator, having been pre-signed on behalf of CEDR. Upon appointment of the mediator by the parties (or by CEDR) any pre-mediation contact between the parties, CEDR staff and CEDR mediator, will observe the mediation agreement’s terms as to confidentiality, regardless of whether the agreement has already been signed or not.

7  The mediation It is normal for each of the parties to have a private room for confidential consultations on their own and with the mediator during the mediation. There should also be a further room large enough for all parties to meet with the mediator jointly. The mediator will chair and take responsibility for determining the procedure at the mediation, in consultation with the parties. The likely procedure will comprise: • preliminary meetings with each of the parties when they arrive at the venue; • a joint meeting of all attending the mediation, at which each of the parties will normally be invited to make an oral presentation; • a mix of further private meetings and joint meetings (which may involve all or some of each party’s team), as proposed by the mediator and agreed by the parties. Professional advisers, particularly lawyers, can and usually do attend the mediation. Such advisers play an important role in the exchange of information and opinion on fact, evidence and law; in supporting their clients (particularly individuals) in the negotiations; in advising clients on the implications of settlement; and in drawing up the settlement agreement and any consent order. No verbatim recording or transcript should be made of the mediation by the parties or the mediator in any form, but participants can make their own private notes which will not be disclosable to anyone else, including in any subsequent litigation or arbitration. Mediations can last beyond a normal working day and it is important that the key people attending for each of the parties remain present or, at worst, available by telephone or video conference for so long as the mediation continues. Any time constraints should be reported to CEDR or the mediator as soon as known, as any unexpected departure can be detrimental to the progress of the mediation and perceived as disrespectful by other parties. 226

Conclusion of the mediation

8  Confidentiality in relation to the mediation The CEDR  Model Mediation Agreement provides that what happens at the mediation is to be treated as confidential by the parties, the mediator and CEDR, including the terms of settlement, unless otherwise agreed by the parties in writing. However, the fact that the mediation is to take place or has taken place is not normally made confidential, as one or other of the parties may wish to claim credit for agreeing to engage in the process or it may have been directed from a public court. If it is desired to make the fact that the mediation is taking place confidential also, the agreement can be amended. As the mediation is held under the auspices of CEDR, and CEDR is a party to the mediation agreement, CEDR is also bound to keep confidential information which the mediator may share with CEDR for the purposes of case reports or queries regarding professional conduct. Apart from where the parties agree in writing to consent to disclosure of what would normally be confidential, there may be rare circumstances in which the confidentiality of the mediation process cannot be preserved, such as where: • the mediator or any party or their representative is required by law to make disclosure; • the mediator reasonably considers that there is a serious risk of significant harm to the life or safety of any person if the information in question is not disclosed; or • the mediator reasonably considers that there is a serious risk of being personally subject to criminal proceedings unless the information in question is disclosed. Such questions might arise in relation to duties under the Proceeds of Crime Act 2002 or related legislation or under any other legislation. Legal representatives (who may themselves be under a comparable duty of disclosure in their own capacity) must take full responsibility for advising their clients of the implications of disclosure in relation to any such matters at a mediation.

9  Conclusion of the mediation The mediation may end in a number of ways: • by settlement of the dispute in whole or part, when all agreed matters must be written down and signed by the parties to be binding; • by an ‘in principle settlement’ of the dispute with an agreement to draft binding terms after the mediation day; • by the mediator advising the parties that a settlement, for the time being, at least, cannot be reached; 227

CEDR Mediation Model Procedure, 2018 Edition • by one or more parties leaving the mediation before settlement is achieved; • by an agreed adjournment for such time and on such terms as the parties and the mediator agree; •

by withdrawal of the mediator in accordance with the mandatory and optional circumstances set out in the Code;

• by production of a document of summary or recommendations from a mediator, if requested by all parties and agreed by the mediator. The mediator will facilitate the drawing up of any settlement agreement, though the drafting is normally done by the lawyers representing each of the parties. Where proceedings have not been started in respect of the dispute, the settlement agreement will (if so intended and drafted) be a contract enforceable by legal action. Where proceedings have been issued in relation to the dispute, it is normal for a Consent Order to be agreed either at or after the mediation and later lodged with the relevant tribunal to end the proceedings on the terms agreed. Parties should agree who will be responsible for lodging the Consent Order. Where the mediation does not end in complete settlement, the mediator may make contact with the parties thereafter to see whether further progress might be possible. Many disputes which do not settle at the mediation settle later, usually as a result of what occurred or was learned at the mediation. Where the mediator is in contact with the parties after a mediation, the provisions of the mediation agreement should be taken to continue to apply. In the event that a settlement is not reached, the mediator if requested and if agreed by each of the parties and the mediator, may produce a non-binding opinion or recommendation in an effort to take the matter forward. CEDR endeavours to make contact with all parties after every mediation to obtain their feedback on both the process itself and, in particular, the mediator. Any feedback obtained regarding the mediator will be given in full to the mediator as part of the mediator’s continuing learning and development and CEDR’s quality assurance.

10 Complaints Any formal complaint about CEDR or any mediator nominated by CEDR should follow the procedure set out on the CEDR website at http://www. cedr.com/complaints.

228

Appendix C

CEDR Code of Conduct for Third Party Neutrals1

1 Introduction This Code of Conduct (‘the Code’) applies to any person who acts as a Mediator or other neutral third party (‘the Neutral’) in any dispute resolution procedure (‘the Process’) conducted under the auspices of the Centre for Effective Dispute Resolution (‘CEDR ’) in relation to an attempt to resolve a dispute or difference (‘the Dispute’) between all the parties (‘the Parties’) to the Dispute under the terms of a written agreement signed by the Parties, the Neutral and CEDR (‘the Process Agreement’) to seek resolution of the Dispute. This code is consistent with the European Code of Conduct for mediators.

2  Competence and availability The Neutral assures the Parties that he or she: 2.1 possesses the necessary competence and knowledge about the Process to deal with the Dispute, based on proper training and updating of education and practice in the necessary skills; and 2.2 has sufficient time to prepare properly for and conduct the Process expeditiously and efficiently.

3  Fees and expenses The Neutral undertakes: 3.1 to make clear either directly to the Parties or through CEDR  Solve the basis for charging fees and expenses as between CEDR  Solve and the Parties for the conduct of the Process before the Process starts; and 3.2 not to prolong the Process unnecessarily where there is, in the Neutral’s opinion, no reasonable likelihood of progress being made towards settlement of the Dispute through the Process. 1 Reproduced with the kind permission of CEDR. For further information please visit www. cedr.com

229

CEDR Code of Conduct for Third Party Neutrals

4  Independence and neutrality The Neutral: 4.1 will at all times act, and endeavour to be seen to act fairly, independently and with complete impartiality towards the Parties in the Process, without any bias in favour of, or discrimination against, any of the Parties; 4.2 will ensure that the Parties and their representatives all have adequate opportunities to be involved in the Process; 4.3 will disclose to the Parties any matter of which the Neutral is or at any time becomes aware which could be regarded as being or creating a conflict of interest (whether apparent, potential or real) in relation to the Dispute or any of the Parties involved in the Process, and, having done so, will not act or continue to act as Neutral in relation to the Dispute unless the Parties specifically acknowledge such disclosure and agree to the Neutral’s continuing to act in the Process: such matters include but are not limited to: • any personal or business relationship with any of the Parties; • any financial or other interest in the outcome of the Mediation; • having acted (either personally or through the Neutral’s own firm or business) in any capacity other than as a Neutral in another Process for any of the Parties; • being in prior possession of any confidential information about any of the Parties or about the subject-matter of the Dispute (but excluding any confidential information given to the Neutral by one of the Parties while acting as Neutral in relation to the Dispute); •

any such matters involving a close member of the Neutral’s family.

4.4 will not (nor will any member of the Neutral’s own firm or business or close family) act for any of the Parties individually in relation to the Dispute either while acting as Neutral or at any time thereafter, without the written consent of all the Parties.

5  Conduct of the Process The Neutral will observe all the terms of the Process Agreement (especially as regards confidentiality) and will conduct the Process consistent with any relevant CEDR Model Procedure. 230

Complaints

6  Professional Indemnity Insurance The Neutral will take out professional indemnity insurance in an adequate amount with a responsible insurer against such risks as may arise in the performance of the Neutral’s duties in relation to the Dispute before acting as a Neutral.

7  Withdrawing from any Process 7.1 The Neutral will withdraw from the Process and cease to act as such in relation to the Dispute if the Neutral: • is requested to do so by one of the Parties, except where the Parties have agreed to a procedure involving a binding decision by the Neutral to conclude the Mediation; • would be in breach of the Code if continuing to act as the Neutral; or • is required by one or more of the Parties to act or refrain from acting in a way which would be in material breach of the Code or in breach of the law. 7.2 The Neutral may withdraw from the Process at the Neutral’s own discretion and after such consultation with the Parties as the Neutral deems necessary and appropriate (and always subject to the Neutral’s obligations as to confidentiality) if: •

any of the Parties is acting in material breach of the Process Agreement;

•

any of the Parties is acting in an unconscionable or criminal manner;

•

the Neutral decides that continuing the Process is unlikely to result in a settlement;

• any of the Parties alleges that the Neutral is in material breach of the Code.

8 Complaints The Neutral will respond to, and co-operate with, any complaints procedure initiated by a party through CEDR Solve in relation to the Process in which the Neutral acted, including attending (without charging a fee or claiming any expenses for attending) any meeting convened by CEDR Solve as part of that complaints procedure.

231

Appendix D

European Code of Conduct for Mediators

1  Competence, appointment and fees of mediators and promotion of their services 1.1 Competence Mediators must be competent and knowledgeable in the process of mediation. Relevant factors include proper training and continuous updating of their education and practice in mediation skills, having regard to any relevant standards or accreditation schemes. 1.2 Appointment Mediators must confer with the parties regarding suitable dates on which the mediation may take place. Mediators must verify that they have the appropriate background and competence to conduct mediation in a given case before accepting the appointment. Upon request, they must disclose information concerning their background and experience to the parties. 1.3 Fees Where not already provided, mediators must always supply the parties with complete information as to the mode of remuneration which they intend to apply. They must not agree to act in a mediation before the principles of their remuneration have been accepted by all parties concerned. 1.4  Promotion of mediators’ services Mediators may promote their practice provided that they do so in a professional, truthful and dignified way.

2  Independence and impartiality 2.1 Independence If there are any circumstances that may, or may be seen to, affect a mediator’s independence or give rise to a conflict of interests, the 233

European Code of Conduct for Mediators mediator must disclose those circumstances to the parties before acting or continuing to act. Such circumstances include: – any personal or business relationship with one or more of the parties; – any financial or other interest, direct or indirect, in the outcome of the mediation; – the mediator, or a member of his firm, having acted in any capacity other than mediator for one or more of the parties. In such cases the mediator may only agree to act or continue to act if he is certain of being able to carry out the mediation in full independence in order to ensure complete impartiality and the parties explicitly consent. The duty to disclose is a continuing obligation throughout the process of mediation. 2.2 Impartiality Mediators must at all times act, and endeavour to be seen to act, with impartiality towards the parties and be committed to serve all parties equally with respect to the process of mediation.

3  The mediation agreement, process and settlement 3.1 Procedure The mediator must ensure that the parties to the mediation understand the characteristics of the mediation process and the role of the mediator and the parties in it. The mediator must in particular ensure that prior to commencement of the mediation the parties have understood and expressly agreed the terms and conditions of the mediation agreement including any applicable provisions relating to obligations of confidentiality on the mediator and on the parties. The mediation agreement may, upon request of the parties, be drawn up in writing. The mediator must conduct the proceedings in an appropriate manner, taking into account the circumstances of the case, including possible imbalances of power and any wishes the parties may express, the rule of law and the need for a prompt settlement of the dispute. The parties may agree with the mediator on the manner in which the mediation is to be conducted, by reference to a set of rules or otherwise. The mediator may hear the parties separately, if he deems it useful. 3.2  Fairness of the process The mediator must ensure that all parties have adequate opportunities to be involved in the process. The mediator must inform the parties, and may terminate the mediation, if: – a settlement is being reached that for the mediator appears unenforceable or illegal, having regard to the circumstances of the case and the competence of the mediator for making such an assessment, or 234

Confidentiality –

the mediator considers that continuing the mediation is unlikely to result in a settlement.

3.3  The end of the process The mediator must take all appropriate measures to ensure that any agreement is reached by all parties through knowing and informed consent, and that all parties understand the terms of the agreement. The parties may withdraw from the mediation at any time without giving any justification. The mediator must, upon request of the parties and within the limits of his competence, inform the parties as to how they may formalise the agreement and the possibilities for making the agreement enforceable.

4 Confidentiality The mediator must keep confidential all information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place, unless compelled by law or grounds of public policy to disclose it. Any information disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission, unless compelled by law.

235

Appendix E

Typical Tomlin Order in a clinical negligence claim

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION BETWEEN

Xxxxx Claimant

And

Xxxxx Defendant

UPON THE PARTIES having agreed terms of settlement BY CONSENT IT IS ORDERED that all further proceedings in this action be stayed upon the terms set out in [in the settlement agreement signed at the conclusion of the mediation on [insert date] the original of which has been held by the Centre for Effective Dispute Resolution] [the Schedule to this Order] except for the purpose of putting into effect those terms; AND THAT either party may apply to the court to enforce the terms upon which this action has been stayed without the need to bring a new claim; AND THAT the parties have agreed that any claim for breach of contract arising from an alleged breach of the terms set out in [the above-mentioned mediation settlement agreement] [the Schedule to this Order] may, unless the court orders otherwise be dealt with by way of an application to the court without the need to start a new claim; AND THAT the defendant pays the claimant’s costs of this action on the standard basis to be subject to detailed assessment if not agreed. SCHEDULE 1

The defendant will pay £50,000.00 to the claimant within 14 days of this order, being additional to the sum of £10,000.00 to be paid out of court as provided in the order above.

2

The defendant will in addition repay to the Compensation Recovery Unit the sum of £14,245.86 as required by the Certificate of Recoverable Benefit dated 12 December 2013. 237

Typical Tomlin Order in a clinical negligence claim 3 The defendant undertakes to provide IVF treatment and cognitive counselling free of charge to the claimant at its Barset Hospital Fertility Clinic on a priority basis for 12 months from the date of this agreement. 4

Upon performance of its obligations under this agreement and the terms set out in the above order, the defendant is discharged from any further liability to the claimant in respect of the subject-matter of this action

DATED [insert date] WE CONSENT to an order in the above terms: Name Name Claimant’s Solicitors

Defendant’s Solicitors

238

Appendix F

Mediation settlement agreement in the same case (if required)

HEADS OF AGREEMENT THIS AGREEMENT is made between: (1) xxxx

(‘Party A’)

and (2) xxxx

(‘Party B’)

through the mediation of CENTRE FOR EFFECTIVE DISPUTE RESOLUTION (CEDR) of International Dispute Resolution Centre, 70 Fleet Street, London, EC4Y 1EU THIS AGREEMENT is made on: (3) [insert date]; at (4) the offices of xxxx, [insert address] in the presence of (5) xxxxx

(Mediator(s)

1.  THE AGREEMENT The Parties agree that: All the rights of action claimed in proceedings brought by Party A against Party B No. HQ0012345 are agreed to be settled on the following terms: 1.1 that Party B pays to Party A the sum of £74,245.86 payable as follows: 1.1.2 £50,000 within 14 days of this agreement 1.1.3 £10,000 to be paid out of Court 1.1.4 £14,245.86 notionally paid to Party A  to be repaid to the Compensation Recovery Unit of the Department of Social Security; 239

Mediation settlement agreement in the same case (if required) 1.2 that in addition Party B pays Party A’s costs of the action to be assessed if not agreed on the standard basis; 1.3 that Party B will express in writing their regret and apologies in relation to the subject-matter of Party A’s claim, together (if he so wishes) with a similar expression of regret and apology by [insert name]; 1.4 The Parties agree that an appointment will be made for Party A  to attend at [insert Party B’s name] premises to view all relevant current documentation relating to Party B’s cervical screening clinic patient information and advice leaflets and for Party B to take due note of Party A’s comments on those; 1.5 Party B agrees to provide IVF treatment and cognitive therapy free of charge to Party A at the [insert name] Fertility Clinic on a priority basis for 12 months from the date of this agreement; 1.6 Each party agrees that they will keep the terms and the fact of this settlement agreement absolutely confidential and will not disclose any such details, in the case of the claimant, to anyone outside her immediate family, the Legal Services Commission and any partner in her General Practitioner practice, the [insert name] Health Centre; and, in the case of Party B, to the NHSLA and any other insurer involved in the litigation and to the medical and administrative staff of the [insert name] NHS Trust; and in either party’s case to CEDR and the court, unless all parties and their representatives and a Director of CEDR agree in writing to such disclosure; 1.7 That on payment of those sums and performance of the other obligations set out in this agreement, Party B and all clinicians involved in this dispute are discharged from any liability to Party A arising from the subject matter of the action; 1.8 That the solicitors for the parties will draft sign and lodge a Consent Order in the proceedings recording these terms within 7 days of this agreement; 1.9 Both Parties agree that if any dispute arises out of this agreement, the Parties will attempt to settle it by mediation before resorting to any other dispute resolution route. It will be initiated by notice to the mediator of the Mediation. If no binding settlement to such a dispute is reached within 28 days from the date of notice to the Mediator under this paragraph, either party may take any appropriate steps to enforce their alleged rights as they may be advised or think fit. 2. CONCLUSION 2.1 It is a condition of this Agreement that the Mediator will not be called by any Party as a witness in litigation or any other 240

Mediation settlement agreement in the same case (if required) process regarding any dispute between the Parties, whether as to what has occurred at the Mediation or otherwise. 2.2 Neither CEDR nor any Mediator appointed by CEDR shall be liable to the Parties for any act or omission whatsoever in connection with the services provided by them. DATED [insert date] SIGNED …………………………………………………………..

241

Appendix G

Pre-Action Protocol for the Resolution of Clinical Disputes

1 Introduction 1.1  This Protocol is intended to apply to all claims against hospitals, GPs, dentists and other healthcare providers (both NHS and private) which involve an injury that is alleged to be the result of clinical negligence. It is not intended to apply to claims covered by— (a) the Pre-Action Protocol for Disease and Illness Claims; (b) the Pre-Action Protocol for Personal Injury Claims; (c) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents; (d) the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims; or (e) Practice Direction 3D – Mesothelioma Claims 1.2  This Protocol is intended to be sufficiently broad-based and flexible to apply to all sectors of healthcare, both public and private. It also recognises that a claimant and a defendant, as patient and healthcare provider, may have an ongoing relationship. 1.3  It is important that each party to a clinical dispute has sufficient information and understanding of the other’s perspective and case to be able to investigate a claim efficiently and, where appropriate, to resolve it. This Protocol encourages a cards-on-the-table approach when something has gone wrong with a claimant’s treatment or the claimant is dissatisfied with that treatment and/or the outcome. 1.4  This Protocol is now regarded by the courts as setting the standard of normal reasonable pre-action conduct for the resolution of clinical disputes. 1.5 1.5.1 This Protocol sets out the conduct that prospective parties would normally be expected to follow prior to the commencement of any proceedings. It establishes a reasonable process and timetable for the exchange of information relevant to a dispute, sets out the standards 243

Pre-Action Protocol for the Resolution of Clinical Disputes for the content and quality of letters of claim and sets standards for the conduct of pre-action negotiations. 1.5.2 The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. Where one or more parties consider the detail of the Protocol is not appropriate to the case, and proceedings are subsequently issued, the court will expect an explanation as to why the Protocol has not been followed, or has been varied. Early Issue 1.6 1.6.1 The Protocol provides for a defendant to be given four months to investigate and respond to a Letter of Claim before proceedings are served. If this is not possible, the claimant’s solicitor should give as much notice of the intention to issue proceedings as is practicable. This Protocol does not alter the statutory time limits for starting court proceedings. If a claim is issued after the relevant statutory limitation period has expired, the defendant will be entitled to use that as a defence to the claim. If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Protocol, the parties should apply to the court for a stay of the proceedings while they so comply. 1.6.2 The parties should also consider whether there is likely to be a dispute as to limitation should a claim be pursued. Enforcement of the Protocol and sanctions 1.7  Where either party fails to comply with this Protocol, the court may impose sanctions. When deciding whether to do so, the court will look at whether the parties have complied in substance with the Protocol’s relevant principles and requirements. It will also consider the effect any non-compliance has had on any other party. It is not likely to be concerned with minor or technical shortcomings (see paragraph  4.3 to 4.5 of the Practice Direction on Pre-Action Conduct and Protocols). Litigants in Person 1.8  If a party to a claim does not seek professional advice from a solicitor they should still, in so far as is reasonably possible, comply with the terms of this Protocol. In this Protocol ‘solicitor’ is intended to encompass reference to any suitably legally qualified person. If a party to a claim becomes aware that another party is a litigant in person, they should send a copy of this Protocol to the litigant in person at the earliest opportunity. 244

The aims of the Protocol

2 The aims of the Protocol 2.1  The general aims of the Protocol are – (a) to maintain and/or restore the patient/healthcare provider relationship in an open and transparent way; (b) to reduce delay and ensure that costs are proportionate; and (c) to resolve as many disputes as possible without litigation. 2.2  The specific objectives are– (a) to encourage openness, transparency and early communication of the perceived problem between patients and healthcare providers; (b) to provide an opportunity for healthcare providers to identify whether notification of a notifiable safety incident has been, or should be, sent to the claimant in accordance with the duty of candour imposed by section 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014; (c) to ensure that sufficient medical and other information is disclosed promptly by both parties to enable each to understand the other’s perspective and case, and to encourage early resolution or a narrowing of the issues in dispute; (d) to provide an early opportunity for healthcare providers to identify cases where an investigation is required and to carry out that investigation promptly; (e) to encourage healthcare providers to involve the National Health Service Litigation Authority (NHSLA) or their defence organisations or insurers at an early stage; (f) to enable the parties to avoid litigation by agreeing a resolution of the dispute; (g) to enable the parties to explore the use of mediation or to narrow the issues in dispute before proceedings are commenced; (h) to enable parties to identify any issues that may require a separate or preliminary hearing, such as a dispute as to limitation; (i) to support the efficient management of proceedings where litigation cannot be avoided; (j) to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims; (k) to promote the provision of medical or rehabilitation treatment to address the needs of the claimant at the earliest opportunity; and (l) to encourage the defendant to make an early apology to the claimant if appropriate. 245

Pre-Action Protocol for the Resolution of Clinical Disputes 2.3  This Protocol does not— (a) provide any detailed guidance to healthcare providers on clinical risk management or the adoption of risk management systems and procedures; (b) provide any detailed guidance on which adverse outcomes should trigger an investigation; or (c) recommend changes to the codes of conduct of professionals in healthcare.

3  The Protocol 3.1  An illustrative flowchart is attached at Annex A which shows each of the stages that the parties are expected to take before the commencement of proceedings. Obtaining health records 3.2  Any request for records by the claimant should– (a) provide sufficient information to alert the defendant where an adverse outcome has been serious or has had serious consequences or may constitute a notifiable safety incident; (b) be as specific as possible about the records which are required for an initial investigation of the claim (including, for example, a continuous copy of the CTG trace in birth injury cases); and (c) include a request for any relevant guidelines, analyses, protocols or policies and any documents created in relation to an adverse incident, notifiable safety incident or complaint. 3.3  Requests for copies of the claimant’s clinical records should be made using the Law Society and Department of Health approved standard forms (enclosed at Annex B), adapted as necessary. 3.4 3.4.1 The copy records should be provided within 40 days of the request and for a cost not exceeding the charges permissible under the Access to Health Records Act 1990 and/or the Data Protection Act 1998. Payment may be required in advance by the healthcare provider. 3.4.2 The claimant may also make a request under the Freedom of Information Act 2000. 3.5  At the earliest opportunity, legible copies of the claimant’s medical and other records should be placed in an indexed and paginated bundle by the claimant. This bundle should be kept up to date. 246

The Protocol 3.6  In the rare circumstances that the defendant is in difficulty in complying with the request within 40 days, the problem should be explained quickly and details given of what is being done to resolve it. 3.7  If the defendant fails to provide the health records or an explanation for any delay within 40 days, the claimant or their adviser can then apply to the court under rule 31.16 of the Civil Procedure Rules 1998 (‘CPR’) for an order for pre-action disclosure. The court has the power to impose costs sanctions for unreasonable delay in providing records. 3.8  If either the claimant or the defendant considers additional health records are required from a third party, in the first instance these should be requested by or through the claimant. Third party healthcare providers are expected to co-operate. Rule 31.17 of the CPR sets out the procedure for applying to the court for pre-action disclosure by third parties. Rehabilitation 3.9  The claimant and the defendant shall both consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures. They should also discuss how these needs might be addressed. An immediate needs assessment report prepared for the purposes of rehabilitation should not be used in the litigation except by consent. (A copy of the Rehabilitation Code can be found at: http://www.iua.co.uk/ IUA_Member/Publications). Letter of Notification 3.10  Annex C1 to this Protocol provides a template for the recommended contents of a Letter of Notification; the level of detail will need to be varied to suit the particular circumstances. 3.11 3.11.1 Following receipt and analysis of the records and, if appropriate, receipt of an initial supportive expert opinion, the claimant may wish to send a Letter of Notification to the defendant as soon as practicable. 3.11.2 The Letter of Notification should advise the defendant that this is a claim where a Letter of Claim is likely to be sent because a case as to breach of duty and/or causation has been identified. A copy of the Letter of Notification should also be sent to the NHSLA or, where known, other relevant medical defence organisation or indemnity provider. 3.12 3.12.1 On receipt of a Letter of Notification a defendant should— (a) acknowledge the letter within 14 days of receipt; 247

Pre-Action Protocol for the Resolution of Clinical Disputes (b) identify who will be dealing with the matter and to whom any Letter of Claim should be sent; (c) consider whether to commence investigations and/or to obtain factual and expert evidence; (d) consider whether any information could be passed to the claimant which might narrow the issues in dispute or lead to an early resolution of the claim; and (e) forward a copy of the Letter of Notification to the NHSLA or other relevant medical defence organisation/indemnity provider. 3.12.2 The court may question any requests by the defendant for extension of time limits if a Letter of Notification was sent but did not prompt an initial investigation. Letter of Claim 3.13  Annex C2 to this Protocol provides a template for the recommended contents of a Letter of Claim: the level of detail will need to be varied to suit the particular circumstances. 3.14  If, following the receipt and analysis of the records, and the receipt of any further advice (including from experts if necessary – see Section 4), the claimant decides that there are grounds for a claim, a letter of claim should be sent to the defendant as soon as practicable. Any letter of claim sent to an NHS  Trust should be copied to the National Health Service Litigation Authority. 3.16  This letter should contain— (a) a clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of negligence; (b) a description of the claimant’s injuries, and present condition and prognosis; (c) an outline of the financial loss incurred by the claimant, with an indication of the heads of damage to be claimed and the scale of the loss, unless this is impracticable; (d) confirmation of the method of funding and whether any funding arrangement was entered into before or after April 2013; and (e) the discipline of any expert from whom evidence has already been obtained. 3.17  The Letter of Claim should refer to any relevant documents, including health records, and if possible enclose copies of any of those which will not already be in the potential defendant’s possession, e.g. any 248

The Protocol relevant general practitioner records if the claimant’s claim is against a hospital. 3.18  Sufficient information must be given to enable the defendant to focus investigations and to put an initial valuation on the claim. 3.19  Letters of Claim are not intended to have the same formal status as Particulars of Claim, nor should any sanctions necessarily apply if the Letter of Claim and any subsequent Particulars of Claim in the proceedings differ. 3.20  Proceedings should not be issued until after four months from the letter of claim. In certain instances it may not be possible for the claimant to serve a Letter of Claim more than four months before the expiry of the limitation period. If, for any reason, proceedings are started before the parties have complied, they should seek to agree to apply to the court for an order to stay the proceedings whilst the parties take steps to comply. 3.21  The claimant may want to make an offer to settle the claim at this early stage by putting forward an offer in respect of liability and/or an amount of compensation in accordance with the legal and procedural requirements of CPR  Part 36 (possibly including any costs incurred to date). If an offer to settle is made, generally this should be supported by a medical report which deals with the injuries, condition and prognosis, and by a schedule of loss and supporting documentation. The level of detail necessary will depend on the value of the claim. Medical reports may not be necessary where there is no significant continuing injury and a detailed schedule may not be necessary in a low value case. Letter of Response 3.22  Attached at Annex C3 is a template for the suggested contents of the Letter of Response: the level of detail will need to be varied to suit the particular circumstances. 3.23  The defendant should acknowledge the Letter of Claim within 14 days of receipt and should identify who will be dealing with the matter. 3.24  The defendant should, within four months of the Letter of Claim, provide a reasoned answer in the form of a Letter of Response in which the defendant should— (a) if the claim is admitted, say so in clear terms; (b) if only part of the claim is admitted, make clear which issues of breach of duty and/or causation are admitted and which are denied and why; (c) state whether it is intended that any admissions will be binding; (d) if the claim is denied, include specific comments on the allegations of negligence and, if a synopsis or chronology 249

Pre-Action Protocol for the Resolution of Clinical Disputes of relevant events has been provided and is disputed, the defendant’s version of those events; (e) if supportive expert evidence has been obtained, identify which disciplines of expert evidence have been relied upon and whether they relate to breach of duty and/or causation; (f) if known, state whether the defendant requires copies of any relevant medical records obtained by the claimant (to be supplied for a reasonable copying charge); (g) provide copies of any additional documents relied upon, e.g. an internal protocol; (h) if not indemnified by the NHS, supply details of the relevant indemnity insurer; and (i) inform the claimant of any other potential defendants to the claim. 3.25 3.25.1 If the defendant requires an extension of time for service of the Letter of Response, a request should be made as soon as the defendant becomes aware that it will be required and, in any event, within four months of the letter of claim. 3.25.2 The defendant should explain why any extension of time is necessary. 3.25.3 The claimant should adopt a reasonable approach to any request for an extension of time for provision of the reasoned answer. 3.26  If the claimant has made an offer to settle, the defendant should respond to that offer in the Letter of Response, preferably with reasons. The defendant may also make an offer to settle at this stage. Any offer made by the defendant should be made in accordance with the legal and procedural requirements of CPR  Part 36 (possibly including any costs incurred to date). If an offer to settle is made, the defendant should provide sufficient medical or other evidence to allow the claimant to properly consider the offer. The level of detail necessary will depend on the value of the claim. 3.27  If the parties reach agreement on liability, or wish to explore the possibility of resolution with no admissions as to liability, but time is needed to resolve the value of the claim, they should aim to agree a reasonable period. 3.28  If the parties do not reach agreement on liability, they should discuss whether the claimant should start proceedings and whether the court might be invited to direct an early trial of a preliminary issue or of breach of duty and/or causation. 250

Alternative dispute resolution 3.29  Following receipt of the Letter of Response, if the claimant is aware that there may be a delay of six months or more before the claimant decides if, when and how to proceed, the claimant should keep the defendant generally informed.

4 Experts 4.1  In clinical negligence disputes separate expert opinions may be needed— • on breach of duty; • on causation; • on the patient’s condition and prognosis; • to assist in valuing aspects of the claim. 4.2  It is recognised that in clinical negligence disputes, the parties and their advisers will require flexibility in their approach to expert evidence. The parties should co-operate when making decisions on appropriate medical specialisms, whether experts might be instructed jointly and whether any reports obtained pre-action might be shared. 4.3  Obtaining expert evidence will often be an expensive step and may take time, especially in specialised areas of medicine where there are limited numbers of suitable experts. 4.4  When considering what expert evidence may be required during the Protocol period, parties should be aware that the use of any expert reports obtained pre-action will only be permitted in proceedings with the express permission of the court.

5  Alternative dispute resolution 5.1  Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of alternative dispute resolution (‘ADR’) might enable them to resolve their dispute without commencing proceedings. 5.2  Some of the options for resolving disputes without commencing proceedings are— (a) discussion and negotiation (which may or may not include making Part 36 Offers or providing an explanation and/or apology) (b) mediation, a third party facilitating a resolution ; (c) arbitration, a third party deciding the dispute; (d) early neutral evaluation, a third party giving an informed opinion on the dispute; and 251

Pre-Action Protocol for the Resolution of Clinical Disputes (e) Ombudsmen schemes. 5.3  Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at— • http://www.civilmediation.justice.gov.uk/ • http://www.adviceguide.org.uk/england/law_e/law_legal_ system_e/law_taking_legal_action_e/alternatives_to_court. htm 5.4  If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR, but a party’s silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.

6 Stocktake 6.1 6.1.1 Where a dispute has not been resolved after the parties have followed the procedure set out in this Protocol, the parties should review their positions before the claimant issues court proceedings. 6.1.2 If proceedings cannot be avoided, the parties should continue to cooperate and should seek to prepare a chronology of events which identifies the facts or issues that are agreed and those that remain in dispute. The parties should also seek to agree the necessary procedural directions for efficient case management during the proceedings.

252

Index

After-the-event insurance funding, 193–194 Agreement to mediate confidentiality, 47 costs, 53 generally, 43–44 precedent, 217–220 Appeals generally, 190 Appointment of mediator choices concerning mediation decision, 107 ATE insurance funding, 193–194 Before-the-event insurance funding, 192 Binding settlements claims procedure, 50–51 Bioethical disputes choices concerning mediation decision, 91–92 Birth trauma claims claims procedure, 81–83 Blamire awards damages, 75 Breach of duty claims procedure, 70–72 Causation generally, 72–74 split trials, 74 CEDR Code of Conduct for Third Party Neutrals generally, 222 text, 229–231 CEDR Mediation Model Procedure 2018 confidentiality, 45 introduction, 44 mediator as evaluator, 158 mediator as witness, 51 settlement, 46 text, 221–228

Cerebral palsy claims procedure, 82 Childbirth claims claims procedure, 81–83 Choices concerning clinical mediation appointment of mediator, 107 bioethical disputes, 91–92 circumstances in which procedure be used, 93–94 complaints processes, 95–98 duration of resolution, 109 early stage catastrophe claims, 91–93 fundamental treatments, 91–93 general considerations, 87–90 identity of mediator, 101–104 inquests, 98–101 mediators identity, 101–104 neutrality, 105–107 potential witnesses, as, 51–53 selection, 107–109 neutrality of mediator, 105–107 pre-action protocol, and, 93 scheme types, 105 selection of mediator, 107–109 serious incidents investigations, 95–98 timing, 109 venue, 101 Civil Procedure Rules claims procedure, 53–58 Clinical claims See also Clinical mediation agreement to mediate, 43–44 binding settlements, 50–51 birth trauma claims, and, 81–83 breach of duty, 70–72 case law Halsey v Milton Keynes NHS Trust, 62–66 causation generally, 72–74

253

Index Clinical claims – contd split trials, 74 cerebral palsy, and, 82 childbirth claims, and, 81–83 Civil Procedure Rules, and, 53–58 confidentiality generally, 45–46 interaction with publicity, 47–49 costs CPR, and, 55–56 generally, 53 court hearings, 41–42 Crown immunity, 68 damages Blamire awards, 75 deceased patient, as to, 76–77 dependency awards, 76–77 discounting, 79–81 experts reports, and, 77 Fatal Accident Acts, under, 76–77 future losses, 75–76 general damages. 75 interest, 77 interim payments, 77 introduction, 74–75 living claimant, for, 75–76 loss of a chance, 80 Part 36 offers, 78–79 past losses, 75 practical considerations, 78 recoupment of state benefits, 77–78 Smith v Manchester awards, 75 special damages, 75 taking account of risk of not succeeding, 80–81 tax, 77 valuation of future losses, 79–80 evidential privilege, 44 experts reports damages, 77 medical opinion, 84–86 fees, 53 framework in England and Wales agreement to mediate, 43–44 binding settlements, 50–51 confidentiality, 45–49 costs, 53, 55–56 CPR, and, 53–58 evidential privilege, 44 fees, 53 introduction, 43

Clinical claims – contd mediator as potential witness, 51–53 non-binding discussions, 50–51 overriding objective, and, 53–55 pre-action protocol, 58–62 privilege, 44 publicity, 47–49 settlement agreements, 50–51 without prejudice correspondence, 44 gynaecology claims, and, 81–83 Human Rights Act claims, 83–84 interim payments, 77 legal issues breach of duty, 70–72 causation, 72–74 damages, 74–75 litigation friends, 67 mediator as potential witness, 51–53 medical defence organisations, 68 multiple defendants, 69 needs of the parties families of patients, 10–17 healthcare professionals, 17–22 introduction, 9–10 patients, 9–17 NHS defendants, 68 no-fault compensation, 22–25 non-binding discussions, 50–51 obstetrics claims, and, 81–83 overriding objective, and, 53–55 parties to claims introduction, 67 litigation friends, 67 medical defence organisations, 68 multiple defendants, 69 NHS defendants, 68 primary victims, 67 secondary victims, 67–68 party objectives, 9–22 post-issue steps, 69–70 pre-action protocol, 58–62 pre-issue steps, 69 primary victims, 67–68 privilege, 44 publicity, 47–49 secondary victims, 67–68 settlement agreements, 50–51 general approach, 27–31 procedures available, 31–41 split trials, 74

254

Index Clinical claims – contd technical issues introduction, 67 parties to claims, 67–69 post-issue steps, 69–70 pre-issue steps, 69 trials, 41–42 without prejudice correspondence, 44 Clinical mediation after-the-event insurance, 193–194 appeals, 190 appointment of mediator, 107 attendance by clinicians, 128–130 before-the-event insurance, 192 bioethical disputes, 91–92 choices concerning appointment of mediator process, 107 bioethical disputes, 91–92 circumstances in which procedure be used, 93–94 complaints processes, 95–98 duration of resolution, 109 early stage catastrophe claims, 91–93 fundamental treatments, 91–93 general considerations, 87–90 identity of mediator, 101–104 inquests, 98–101 mediators, 101–109 neutrality of mediator, 105–107 pre-action protocol, and, 93 scheme types, 105 selection of mediator, 107–109 serious incidents investigations, 95–98 timing, 109 venue, 101 circumstances in which procedure be used, 93–94 claimant team co-operation with defendants, 124 counsel instructed, where, 121–122 defendants indicating no offer likely, where, 121 generally, 116–121 multiple claimants, where, 124 possibility of compromise, for, 122–124 clinicians, 128–130 complaints processes, 95–98

Clinical mediation – contd compromise, 122–124 conditional fee agreements, 193–194 conduct of meeting, 147–149 contingency fees, 194 co-operation between parties, 124 costs court controls, 194–195 generally, 190–192 global offers, 195–197 counsel instructed, where, 121–122 damages-based agreements, 194 defendant team attendance by clinicians, 128–130 co-operation with claimant team, 124 denial of liability, where, 126–128 GP practice managers, 130–131 introduction, 124 MDO case handlers, 131–132 multiple defendants, where, 132–133 NHSR case handlers, 131–132 Trust claims managers, 130–131 defendants indicating no offer likely, where, 121 denial of liability, where, 126–128 duration of resolution, 109 early stage catastrophe claims, 91–93 ending meetings, 154–155 evaluation of claim by mediators, 158–159 expert evidence, 133–134 exploring options and risks, 155–156 fundamental treatments, 91–93 funding after-the-event insurance, 193–194 before-the-event insurance, 192 conditional fee agreements, 193–194 contingency fees, 194 damages-based agreements, 194 introduction, 192 legal aid, 194 private resources, 192 future issues, 201–212 general considerations, 87–90 global offers, 195–197 GP practice managers, 130–131 identity of mediator, 101–104 initial stages, 111 inquests, 98–101

255

Index Clinical mediation – contd joint meeting, 144–146 later process choices, 157–158 lay-out of meeting room, 146–147 legal aid, 194 legal framework See also Clinical claims agreement to mediate, 43–44 binding settlements, 50–51 confidentiality, 45–49 costs, 53, 55–56 CPR, and, 53–58 evidential privilege, 44 fees, 53 introduction, 43 mediator as potential witness, 51–53 non-binding discussions, 50–51 overriding objective, and, 53–55 pre-action protocol, 58–62 privilege, 44 publicity, 47–49 settlement agreements, 50–51 without prejudice correspondence, 44 MDO case handlers, 131–132 mediation day conduct of meeting, 147–149 ending meetings, 154–155 evaluation of claim by mediators, 158–159 exploring options and risks, 155–156 introduction, 135–136 joint meeting, 144–146 later process choices, 157–158 lay-out of meeting room, 146–147 multiple parties, 155 neutrality of mediator, 158–159 offers, 153–154 opening statements, 149–153 prior private meetings, 138–144 proposals to settle, 159–165 venue arrangements, 136–138 mediators identity, 101–104 neutrality, 105–107 potential witnesses, as, 51–53 preparation, 111–116 selection, 107–109 multiple parties, where alternative models, 181–183 bespoke process design, 181–183

Clinical mediation – contd claimants, 172–174 conduct of meeting, 155 defendants, 167–172 introduction, 167 preparation by claimants, 124 preparation by defendants, 132–133 retained organs cases, 174–181 neutrality of mediator conduct of meeting, 158–159 generally, 105–107 NHSR case handlers, 131–132 offers, 153–154 opening statements, 149–153 organ retention cases, 174–181 possibility of compromise, 122–124 pre-action protocol, and, 93 preparation attendance by clinicians, 128–130 claimant team, by, 116–124 conclusion, 134 contact, 111–115 co-operation with defendants, 124 counsel instructed, where, 121–122 defendant team, by, 124–133 defendants indicating no offer likely, where, 121 denial of liability, where, 126–128 expert evidence, 133–134 GP practice managers, 130–131 initial stages, 111 introduction, 111 MDO case handlers, 131–132 mediators, by, 115–116 multiple claimants, where, 124 multiple defendants, 132–133 NHSR case handlers, 131–132 possibility of compromise, for, 122–124 route to mediation, and, 125 Trust claims managers, 130–131 , 190 private funding sources, 192 private meetings prior to joint meeting, 138–144 proposals to settle, 159–165 purpose, 87–90 retained organs cases, 174–181 route to mediation, and, 125 scheme types, 105 selection of mediator, 107–109

256

Index Clinical mediation – contd serious incidents investigations, 95–98 settlement generally, 185–188 overview, 37–39 practicalities, 188–189 purpose, 185–186 written term, 188–189 status, 43–44 timing, 109 Trust claims managers, 130–131 venue choice, 101 lay-out of meeting room, 146–147 practical arrangements, 136–138 Codes of conduct CEDR Code for Third Party Neutrals, 229–231 European Code for Mediators, 233–235 Complaints processes choices concerning mediation decision, 95–98 Compromise acceptance of Part 36 offers, 32–35 direct negotiation, 31–32 general approach, 27–31 independently-chaired round table meetings, 39–41 mediation, 37–39 negotiation, 31–32 Part 36 offers, 32–35 procedures available, 31–41 round table meetings, 35–37 Conditional fee agreements (CFAs) funding, 193–194 Confidentiality generally, 45–46 interaction with publicity, 47–49 Contingency fees funding, 194 Costs court controls, 194–195 CPR, and, 55–56 generally, 190–192 global offers, 195–197 introduction, 53 Court hearings generally, 41–42 Crown immunity claims procedure, 68

Damages Blamire awards, 75 deceased patient, as to, 76–77 dependency awards, 76–77 discounting, 79–81 experts reports, and, 77 Fatal Accident Acts, under, 76–77 future losses, 75–76 general damages. 75 interest, 77 interim payments, 77 introduction, 74–75 living claimant, for, 75–76 loss of a chance, 80 Part 36 offers, 78–79 past losses, 75 practical considerations, 78 recoupment of state benefits, 77–78 Smith v Manchester awards, 75 special damages, 75 taking account of risk of not succeeding, 80–81 tax, 77 valuation of future losses, 79–80 Damages-based agreements funding, 194 Deceased patient damages, 76–77 Dependency awards damages, 76–77 Discounting damages, 79–81 Duration of resolution choices concerning mediation decision, 109 Early stage catastrophe claims choices concerning mediation decision, 91–93 European Code of Conduct for Mediators confidentiality, 45 text, 233–235 Evidence privilege, 44 Experts reports damages, 77 medical opinion, 84–86 Family of the patient objective of claim, 9–17 Fatal Accident Acts damages, 76–77

257

Index Fees claims procedure, 53 Fundamental medical treatments choices concerning mediation decision, 91–93 Funding after-the-event insurance, 193–194 before-the-event insurance, 192 conditional fee agreements, 193–194 contingency fees, 194 damages-based agreements, 194 introduction, 192 legal aid, 194 private resources, 192 Future losses generally, 75–76 valuation, 79–80 General damages generally, 75 Global offers costs, 195–197 Gynaecology claims claims procedure, 81–83 Healthcare professionals objective of claim, 17–22 Human Rights Act claims claims procedure, 83–84 Inquests choices concerning mediation decision, 98–101 Interest damages, 77 Interim payments damages, 77 Joint meetings conduct, 147–149 ending, 154–155 introduction, 144–146 lay-out of room, 146–147 making offers, 153–154 opening statements, 149–153 Legal aid funding, 194 Litigation friends claims procedure, 67 Living claimant damages, 75–76

Loss of a chance damages, 80 Mediation See also Clinical mediation characteristics, 37–39 choices concerning, 87–109 conduct of process on mediation day, 135–165 definition, 37 future issues, 201–212 generally, 37–39 legal framework, 43–66 meetings, 135–165 multiple parties, with, 167–183 preparation, 111–134 procedural framework, 43–66 procedural issues, 67–86 settlement, 185–199 status, 43–44 Mediation day conduct of joint meeting, 147–149 ending meetings, 154–155 evaluation of claim by mediators, 158–159 exploring options and risks, 155–156 introduction, 135–136 joint meeting conduct, 147–149 ending, 154–155 introduction, 144–146 lay-out of room, 146–147 making offers, 153–154 opening statements, 149–153 later process choices, 157–158 lay-out of meeting room, 146–147 multiple parties, 155 neutrality of mediator, 158–159 offers, 153–154 opening statements, 149–153 prior private meetings claimants, 141–143 defendants, 143–144 introduction, 138 mediator’s role, 138–141 proposals to settle, 159–165 venue choice, 101 lay-out of meeting room, 146–147 practical arrangements, 136–138 without prejudice, 147–148 Mediators identity, 101–104

258

Index Mediators – contd neutrality, 105–107 potential witnesses, as, 51–53 selection, 107–109 Medical defence organisations claims procedure, 68 Medical Protection Society (MPS) pilot mediation scheme details 213 Multiple parties alternative models, 181–183 bespoke process design, 181–183 claimants generally, 172–174 preparation for joint meetings, 124 conduct of meeting, 155 defendants claims procedure, 69 generally, 167–172 preparation for joint meetings, 132–133 introduction, 167 preparation for joint meetings claimants, by, 124 defendants, by, 132–133 retained organs cases, 174–181 Needs of the parties families of patients, 10–17 healthcare professionals, 17–22 introduction, 9–10 patients, 9–17 Negotiation settlements, and, 31–32 Neutrality of mediator choices concerning mediation decision, 105–107 evaluation of claim, 158–159 NHS defendants claims procedure, 68 NHS Resolution (NHSR) annual report, 27 confidentiality, and 214 decision to mediate, 125 multiple defendants, where, 167 parties to claims, 68 preparation for joint meetings, 131–132 use of mediation, 88 No-fault compensation general debate, 22–25 Non-binding discussions claims procedure, 50–51

Objective of the parties families of patients, 10–17 healthcare professionals, 17–22 introduction, 9–10 patients, 10–17 Obstetrics claims claims procedure, 81–83 Organ retention cases claims by multiple parties, 174–181 Overriding objective claims procedure, 53–55 Part 36 offers damages, 78–79 settlements, 32–35 Parties to claims introduction, 67 litigation friends, 67 medical defence organisations, 68 multiple defendants, 69 NHS defendants, 68 primary victims, 67 secondary victims, 67–68 Past losses damages, 75 Patients objectives of claim, 10–17 Payments into court settlements, and, 32–35 Pre-action protocol for the resolution of clinical disputes choices concerning mediation decision, 93 CPR, and, 55 future issues, 212 generally, 58–62 joint meetings, 144 party objectives in claims, 16 settlement processes, 28 text, 243–252 Pre-issue steps claims procedure, 69 Preparation for mediation attendance by clinicians, 128–130 claimant team, by co-operation with defendants, 124 counsel instructed, where, 121–122 defendants indicating no offer likely, where, 121 generally, 116–121 multiple claimants, where, 124

259

Index Preparation for mediation – contd possibility of compromise, for, 122–124 clinicians, by, 128–130 conclusion, 134 contact, 111–115 co-operation with defendants, 124 counsel instructed, where, 121–122 defendant team, by attendance by clinicians, 128–130 co-operation with claimant team, 124 denial of liability, where, 126–128 GP practice managers, 130–131 introduction, 124 MDO case handlers, 131–132 multiple defendants, where, 132–133 NHSR case handlers, 131–132 Trust claims managers, 130–131 defendants indicating no offer likely, where, 121 denial of liability, where, 126–128 expert evidence, 133–134 GP practice managers, 130–131 initial stages, 111 introduction, 111 MDO case handlers, 131–132 mediators, by generally, 111–115 method, 115–116 multiple claimants, where, 124 multiple defendants, where, 132–133 NHSR case handlers, 131–132 possibility of compromise, for, 122–124 route to mediation, and, 125 Trust claims managers, 130–131 Primar y victims claims procedure, 67–68 Private meetings claimants, 141–143 defendants, 143–144 introduction, 138 mediator’s role, 138–141 Privilege claims procedure, 44 Publicity claims procedure, 47–49

Retained organs cases claims by multiple parties, 174–181 Round table meetings generally, 35–37 independently-chaired, 39–41

Recoupment of state benefits damages, 77–78

Valuation of future losses damages, 79–80

Secondar y victims claims procedure, 67–68 Selection of mediator choices concerning mediation decision, 107–109 Serious incidents investigations choices concerning mediation decision, 95–98 Settlement acceptance of Part 36 offers, 32–35 claims procedure agreements, 50–51 general approach, 27–31 procedures available, 31–41 direct negotiation, 31–32 form of agreement, 239–241 general approach, 27–31 generally, 185–188 independently-chaired round table meetings, 39–41 mediation, 37–39 negotiation, 31–32 overview, 37–39 Part 36 offers, 32–35 practicalities, 188–189 procedures available, 31–41 purpose, 185–186 round table meetings, 35–37 written terms, 188–189 Smith v Manchester awards damages, 75 Special damages generally, 75 Split trials claims procedure, 74 Tax damages, 77 Tomlin orders generally, 50 precedent, 237–238 settlement practicalities, 189 Trials generally, 41–42

260

Index Venue choice, 101 lay-out of meeting room, 146–147 practical arrangements, 136–138

Without prejudice claims procedure, 44 conduct of meetings, 147–148 disclosure of expert evidence, 133

261