Refereeing decision

Mediation has not proved popular for resolving clinical disputes. Arnold Simanowitz looks at the reasons why and a new initiative that could spark a change in attitude

Mediation as an alternative means of resolving disputes has been increasing in popularity and has many supporters among the legal profession.
As so often happens with the legal profession, when it was first introduced it was approached with considerable scepticism. But in recent years a lot of that scepticism has been assuaged, thanks to the efforts of mediation providers, in particular the Centre for Effective Dispute Resolution (Cedr). Many lawyers, even those in the top City firms, now regard mediation as a good alternative to litigation and many disputes, often ones involving millions of pounds, are resolved in this manner.
However, this does not apply to clinical disputes, where mediation has simply not taken off. In 1998, the Department of Health ran a pilot to test whether mediation was viable for clinical disputes. The department had an interest in popularising an alternative form of dispute resolution that had the potential to reduce substantially legal costs and to meet some of the concerns, other than compensation, that patients often expressed and that often bedevilled the relationship between patients and the healthcare providers.
Unfortunately, over a two-year period, only 12 cases were put into the pilot; and while those who ran the pilot were enthusiastic about the results, the lack of interest on the part of both claimants' and defendants' lawyers meant that it was not possible to draw any conclusions that might encourage clinical negligence lawyers to embrace the process.
Since then, both the Legal Services Commission (LSC) and the National Health Service Litigation Authority (NHSLA) have taken steps to encourage those solicitors who litigate clinical disputes with the backing of public funds to make use of mediation more frequently. Despite this, relatively little mediation takes place in this area of the law.
Healthcare charity Action for Victims of Medical Accidents (Avma) has not encouraged its use. Avma is acutely aware of the potential that the mediation process has for helping victims of medical accidents. As a trained mediator, I know that the basic principles of mediation could be a major tool in reducing the second trauma that patients suffer as a result of litigation. Insofar as clinical disputes are concerned, however, Avma takes the view that mediation suffers from three major drawbacks.
First, there is a great lack of understanding on the part of clinical negligence solicitors about the nature of mediation and consequently there is a danger that they would be unable to help their clients to make proper use of it. Second, Avma believes it is essential that mediators themselves should have a good understanding of clinical negligence litigation and the particular needs and sensitivities of patients and doctors in this area. There are few mediators who meet this requirement. Finally, it is abundantly clear that the decision as to whether mediation is the right process, at the right time in a particular clinical dispute, is often a difficult one and assessment support should be available from those with specialised skills.
Avma has agreed with the NHSLA to explore a proposal for a system that will address all of these issues. Cedr, the leading provider of mediation, is keen to create greater confidence in its use in clinical disputes and has agreed to assist in this project. The LSC also has a major interest in encouraging mediation for clinical disputes and has expressed some frustration at the lack of take-up of the process. It has awarded Avma and Cedr a grant to develop the project.
The aim of the project is to develop a specialist panel of senior mediators with advanced training and accreditation. It will provide top-quality independent mediation in health disputes, including a neutral, non-binding process consultancy, and will improve the knowledge base and skills of lawyers acting for parties in the mediation process.
The NHSLA and Avma panel will include, but not be limited to, professionals from both sides of the claimant-defendant divide. This will provide an assurance of expertise, impartiality and awareness of relevant issues and sensitivities. The aim is that patients, medical practitioners, trusts, the NHSLA and medical defence organisations should all see the panel as a trusted resource for addressing disputes.
A specialist training and accreditation programme for the panel will be established for mediators already accredited by their mediation organisations.
Members of the panel will be trained to provide a preliminary, neutral and non-binding assessment function in individual cases. This consultancy process may include considering with parties and/or their lawyers whether mediation is appropriate at that stage, or at all, and if so, on what basis and terms. Matters such as the sufficiency of medical reports and whether mediation is to be facilitative, or have a non-binding evaluative element, can also be addressed.
Cases that require extensive preparation, as covered by the protocol, could perhaps be identified and help could be given to make the litigation process as focused, economic and fair as possible. Cases that can be addressed more quickly and simply through a complaints procedure could be identified. Each case would be considered on an individual preliminary basis, with the panel members co-working on an inter-disciplinary basis – for example, a doctor/lawyer team. The project will include a facility for lawyers, representing parties in clinical negligence cases, to obtain specialised training in the effective and constructive use of mediation and other alternative dispute resolution processes.
The project will be explored further at the Avma 20th Anniversary Clinical Negligence Conference, to be held in Harrogate on 12 and 13 July. If the project can achieve its objectives, Avma will be able to throw its weight behind the efforts to increase the use of mediation in clinical disputes with confidence that this approach will be in the interests of both patients and healthcare practitioners.
Arnold Simanowitz is chief executive of Avma