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Mediation for medical negligence claims: the benefits and risks

Sadly, it’s a fact that medical treatment does not always go to plan. Substandard treatment can lead to patients suffering needless injuries and in some cases, leaving them with new needs that must be met.

For some an apology and an explanation will suffice, others may wish to seek financial compensation for the mistakes that were made.

For those seeking financial compensation, our medical negligence team do all that they can to ensure that the maximum amount of compensation is achieved.

If the negligent care was provided by an NHS hospital, then it is the NHS that will stand as the defendant.

In such cases, the NHS is usually represented by NHS Resolution, formerly known as NHS Litigation Authority (NHSLA).

However, one alternative to litigation is mediation.

Mediation was initially proposed and trialled in 2014 and now NHS Resolution has set up three bodies to provide independent mediation of healthcare claims.

What is mediation?

Mediation is another form of dispute resolution. It is carried out by a mediator (usually an independent third party). Their role is to listen to both sides of the dispute, identify the issues that both parties have and ultimately find an agreement that both parties can agree to.

The mediation process is a confidential one and can afford a level of flexibility that other forms of litigation may not. The process can take anywhere between a few hours to a number of days depending on what each party wants to achieve, and it can take place at any point during a claim, including before court proceedings are issued.

What are the benefits of mediation in a clinical negligence case?

One of the key benefits of including a mediator is the fact that they encourage dialogue between the parties involved in a case, wherein other forms of litigation they may have broken down.

They identify the issues that really matter to each side and take an ‘all round’ approach to facilitate the needs and wishes of both parties involved in a claim.

As aforementioned, the process is completely confidential and the parties can speak to the mediator individually or collectively. They may also disclose particular documents during the mediation process.

Should the mediator be successful and both parties reach an agreement, said agreement will also remain confidential and will be legally binding once both parties have signed it.

In any medical negligence claim, it is unlikely that either party will want to go through the stress and expense of litigation or a trial.

Mediation offers a comparatively quick and fair resolution and can be an attractive way to resolve a claim whilst also offering a resolution without solely focusing on compensation.

Can you use mediation for your claim?

Whether mediation is suitable or not for your claim depends on what you hope to achieve through the mediation process.

If you are simply looking for an explanation or an apology for the negligent clinical treatment, then the meditation process could prove very effective. However, if you also want to seek financial compensation, mediation can also prove effective, however, you should also ensure that you seek legal advice to ensure that any agreement struck is fair and the outcome is the one that you are happy to accept.

The key focus of any mediator is to ensure that both parties reach an agreement that they are happy with, however without legal representation, a patient could be at a disadvantage and be left without the resolution they’d hoped for and without any other avenues to explore as the agreement is binding once it is signed.

NHS Resolution may offer mediation at any point during a claim against the NHS. Because this may be a possibility, a patient should always seek expert evidence before they enter into mediation in order to fully understand the extent of an injury and whether it is likely to get worse in the future.

Patients also have the right to enter into mediation with their own solicitor present to ensure that they are on an equal footing with the NHS.

How we can help

Thorneycroft clinical negligence solicitors can help you secure the compensation you deserve as quickly as possible. A member of our specialist team will be available to advise you through each step of the claim’s process including mediation if that is an avenue that you agree to.

In every clinical negligence, we assist with, we work with the most experienced medical experts, ensuring their involvement from the outset of the claim to offer advice and guidance.

If you would like to pursue a clinical negligence claim and would like to speak to a member of our team to discuss your case you can contact us for free by calling 0800 1979 345 or completing our online enquiry form.