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New High Court rules on mediation and conciliation
New High Court Rules on Mediation and Conciliation (the “Rules”), under which a High Court judge may adjourn legal proceedings to allow the parties to engage in alternative dispute resolution (ADR), may yield an increase in the number of medical negligence claims being settled through mediation, conciliation or other forms of ADR.
In practice mediation and conciliation have not traditionally been embraced in the context of clinical negligence disputes to the same degree as in other areas of law (though there are an increasing number of mediations in medical negligence cases). However, the Rules, which came into effect on 16 November 2010, anticipating recommendations made by the Law Reform Commission in its report issued in November 2010, will allow a judge to order parties to legal proceedings to consider ADR. If a party fails or refuses to participate without good reason this may be taken into account by the court when subsequently awarding the costs of any action or appeal.
In one respect this is nothing new - the option of using mediation in clinical negligence disputes has been with us for a number of years (see section 15 of the Civil Liability and Courts Act 2004). However, prior to the Rules, the Court had no specific power to award costs against a party for failing to at least attempt to resolve the dispute through ”softer” means.
The process envisaged is simple and straightforward. If it considers it appropriate, a Court, of its own accord, or following application by one of the parties in a suitable case (and not all cases are suitable for ADR – for example where an issue of legal precedent is at issue), may direct the adjournment of proceedings generally, or of any issue in particular, and invite the parties to use some form of ADR to determine the proceedings, or issue. Alternatively, where the parties are happy to consent to some form of ADR, the court will refer the proceedings to ADR and adjourn the proceedings for a sufficient period to allow the procedure to take place. In either situation, the Court may invite the parties to attend an information session on the use of mediation.
Mediation is the ADR process most often used, and referred to, in civil (especially medical negligence) cases, though other processes such as conciliation, early neutral evaluation, expert determination and Med/Arb also come under the umbrella of ADR.
In a mediation, the mediator’s role is to encourage and facilitate the parties to reach settlement and not to impose a resolution or make a judgement or determination. Either party can, at any time, if they are dissatisfied with the process, or if they cannot reach a resolution go back to the courts for a determination. The process is confidential and without prejudice and nothing said in the mediation can be used in subsequent legal proceedings in the event that the mediation is unsuccessful. The process is non-binding unless a concluded settlement agreement is reached between the parties.
It is widely accepted that mediation is a particularly appropriate vehicle for the swift and amicable resolution of medical negligence actions. Mediation affords both parties an opportunity, in a private, confidential and without prejudice forum to freely express their feelings about the impact of the alleged incident, and to hear an acknowledgment of that impact. This is a critical facet of its attractiveness in the healthcare arena, in light of the high proportion of medical negligence claims which are currently settled at, or just before, trial, and often result in the Plaintiff feeling as though s/he has not had the opportunity to air his/her grievance. Through mediation, both the Plaintiff and the medical practitioner are given the opportunity to voice his/her side of the story. The practitioner is also afforded an opportunity to apologise without admitting liability and avoid risking potential reputational damage on foot of the media coverage which frequently accompanies a trial.
Moreover, mediation facilitates greater access to individualised justice, leaving parties free to fashion their own remedies and avail of creative and flexible outcomes. This was acknowledged by the Law Reform Commission in its 2008 Consultation Paper on ADR, which cited the example of a dispute involving a woman who was alleging that her ability to conceive had been compromised as a result of a ruptured scar. In that case an offer of a fast-track IVF procedure being put in place resulted in the dispute being settled amicably through ADR.
In addition, mediation will usually result in the dispute being settled more quickly and cheaply than if the matter was to journey through the highly adversarial and costly court process.
Mediation’s success rate, at 70% - 80% of cases referred to mediation speaks for itself. In Britain, the NHS has had a mediation pilot scheme since 1995 and in 2001, the British Medical Association formally endorsed the use of mediation wherever possible. In the second year of the scheme, nearly 75 per cent of cases mediated in the NHS scheme reached settlement, and on the basis of anecdotal evidence, and albeit based on a relatively small (but growing) number of cases so far, it appears that Ireland’s rate of success in respect of medical negligence disputes referred to mediation is similarly high at approximately 80% ADR pre-commencement of litigation?
Introduced with a view to minimising the cost of litigation and ensuring efficient use of court time and resources, although the ADR procedures envisaged by the Rules can be availed of at any stage of new and existing High Court proceedings, they will not come into play unless proceedings have actually issued. However, mediation prior to the commencement of litigation can, and does, occur as it is a voluntary process and provided both parties agree, a mediation can take place at any time.
In its recent report (November 2010) on ADR, the Law Reform Commission recommended that the State Claims Agency introduce an ADR policy that would promote the use of ADR procedures prior to the commencement of litigation. This suggests the use of another form of ADR - “early neutral evaluation” - which would enable parties to a dispute to appoint a neutral and independent third person, or persons, to provide them with an unbiased evaluation of the facts, evidence or legal merits of the dispute, and guidance as to the likely outcome should the case be heard in court. Again, the evaluation would be without prejudice to any proceedings which subsequently issued, and the parties would not be obliged to accept the findings of the objective third party.
The introduction of such a pre-litigation measure, coupled with the possibility of mediation, across the board could potentially have a significant impact on the costs of resolving difficult medical negligence cases by facilitating communication while providing the parties with a realistic assessment of their position early in the process, and enabling a would-be plaintiff to assess, with the guidance of an objective third party, whether litigating a dispute is likely to be financially, and emotionally, worthwhile.
Once High Court proceedings are in being, the impetus is now on all parties, and their advisers, to be aware of the fundamentals of mediation, conciliation and ADR generally, as it is now increasingly likely that a party who is unwilling to partake in such a voluntary process, without good reason, may be penalised with a costs sanction should the matter ultimately be ruled upon by a court.