8 October 2001
A recent article on clinical negligence in The Lawyer (24 September) reported allegations that National Health Service Litigation Authority (NHSLA) lawyers are refusing to offer mediation, that we are a band of Rottweilers too timid to tell the NHSLA that "their doctors" have been negligent and they must pay up.
All NHSLA lawyers have to complete a quarterly report giving options for managing the case. Each report includes a section devoted to the discussion of the issue of mediation. Thus mediation is considered every three months on every file.
We also know that the NHSLA's policy is to promote mediation. We have been instructed in imperative terms to consider it in every case. Every solicitor writing a report and every claims handler at the NHSLA reading it knows that if we are not proposing mediation we have to explain why not.
It would also be unfair to say that the instruction falls on unreceptive ears. Our Harrogate team conducted the northern half of the NHS pilot mediation. On our staff we have qualified mediators. Many are proud to have successfully conducted mediation for the NHS and other clients. Two partners are pro bono mediators for the Court of Appeal Mediation Scheme. Some of us have been lecturing about mediation ever since it became fashionable and we had an in-house lecture from the Centre for Dispute Resolution only this year. In short, it is nonsense to suggest that we are lukewarm about mediation.
The difficulties with mediation come from the other side. Their representatives believe, as was said in The Lawyer's article, that the issues are very complex and claimants are vulnerable. Thus even specialist firms believe that if they are going to do a mediation they must turn up with leading counsel as well as the specialist solicitor. Once you start talking like that, it does become harder to justify mediation because two of the differences between a trial and mediation come to the fore.
The first is that in a mediation you pay for the judge as well as counsel. The second is that in a mediation you may not get a definitive result. The advantages of mediation are that both sides come to it with a commitment to a settlement, seeking agreement. This is facilitated if the lawyers who stand between the parties take on a much smaller role. Once leading counsel is there they tend to "own" the proceedings. It is much harder for a claimant to say that they really want a settlement even if they give up the chance of doing better if they go on to trial.
There are several Alternative Dispute Resolution alternatives to mediation. The simplest is a telephone call. The most aggressive and effective is often a Part 36 offer. The NHSLA is inventive and insistent in promoting these. Last week I wanted to settle a claim worth about £25,000. I had been trying to persuade my opponent to discuss it constructively without effect despite several phone calls. She could not get instructions. The LA sent an experienced insurance claims inspector round and he got the settlement.
The article also misunderstood the National Audit Office (NAO) report. Admittedly, it seems ambiguous unless read carefully, but it is simply not the case that the NAO found the average time for a claim to be concluded in 1999/2000 was five and a half years, or that 22 per cent of cases outstanding were more than 10 years old. These facts appeared in a section dealing with one specific scheme, the Existing Liabilities Scheme (ELS).
The ELS deals only with those liabilities which arose before 1 April 1995. In other words, it is a cohort which consists of cases more than five years old, all of which were, until two or three years ago, run without the direct supervision of the NHSLA.
It is also wrong to say that the costs of the action exceeded awards by up to 50 per cent, without making it clear that this was only in respect of small claims, the majority of them very small.
The one abiding pressure from the NHSLA is to shorten the shelf life of files. They are neither concerned to win at all costs nor reluctant to be told that "their doctors" have been negligent. In fact, they are likely to be at least as sceptical of the chances of running a defence as their solicitors. They recognise that where patients have suffered damage as the consequence of negligence, the NHS has an obligation to pay compensation as fast as possible without incurring avoidable legal costs.