Sunday, 24 January 2010

Mediation v the Adversarial System

Mediation v the Adversarial System

By Adam Manning

The civil litigation process, which includes personal injury and clinical negligence claims, is of course ultimately based on adversarial principles. That is, it consists of two sides engaged in what can at times appear to be a battle and the busy personal injury practitioner will on occasion be reminded of the saying that litigation is war. The ultimate theatre for this warfare by paperwork is the courtroom and during the claim’s progress the combatants will be assessing their strengths and weaknesses, employing tactics and strategies designed to ensure victory and judging when to advance and when to retreat.

Does it have to be this way? Presumably justice is the ideal result of a legal process. Is pitting the two sides of a case against each other in this dramatic fashion really the best method to arrive at a just result? For a long time many have taken the view that the civil litigation process, far from encouraging parties to rationally consider their cases and work towards a reasonable settlement, draws them into an escalating state of conflict which unnecessarily increases the time and expense involved.

In recognition of this, the Civil Procedure Rules require the courts to encourage the parties to use alternative dispute resolution, or ADR, where appropriate as part of active case management. The personal injury pre-action protocol also requires parties to consider ADR and whether it would be more suitable than litigation and if possible endeavour to agree on a form of ADR to be used. In addition, the rules about costs mean the court can take into account the general litigation conduct of a party and this includes considering whether efforts were taken to reach a settlement rather than litigating. The protocol explicitly refers to this point and says the court will have regard to conduct of this nature when determining costs and in particular whether ADR was considered.

Shortly after a claim is issued, an Allocation Questionnaire is sent out by the Court to the parties for them to complete and return. The first substantive section of this requires legal representatives to clearly state that they have advised their clients about the need to settle, the options that are available and the costs sanction that may apply if in default. The form then asks whether the party would like the court to appoint a mediation appointment and if not, why not. Bearing in mind the potential costs consequences referred to above, this is clearly a serious issue. Indeed some county courts have gone further when sending out the allocation questionnaire and included with it additional information about mediation services and made it abundantly clear that those failing, without good reason, to use mediation maybe penalized on costs. They indicate that those who are unwilling to mediate may find themselves later having to explain exactly why they did not do so.

Clearly mediation is a principal focus for the greater movement towards ADR to avoid the time and expense of litigation as it is normally understood. In certain areas of the law, such as the financial resolution of a divorce or a neighbour dispute, this seems entirely reasonable and logical. Any opportunity to try and remove some of the prejudices or emotions that might be a stumbling block to a settlement and focus on areas of agreement has to be a positive step. But is this as appropriate in a clinical negligence or personal injury claim? Whist the circumstances of an accident or a clinical negligence claim can undoubtedly be distressing, they would appear to be more factually based than other forms of disputes.

On the face of it, this might to some suggest that mediation was less appropriate in personal injury or clinical negligence claims. Why should a claimant with a strong case be interested in mediation, apart from paying some form of lip service to the requirement to do so? Facts about how an act of clinical negligence or an accident occurred are, presumably, not something that can be mediated. It is notable that, according to professional mediators, a very low uptake of mediation in these areas. Whilst this is no doubt partly due to a certain lack of familiarity with the process of mediation, it must represent a general disinclination to mediate where there seems to be little apparent benefit in doing so.

There is perhaps a certain tension between an adversarial system based on the parties trying to win out over the other side on the one hand and moves towards mediation with its emphasis on cooperation and the parties showing good faith in working towards a settlement on the other. For the reasons referred to above this might be most easily seen in personal injury and clinical negligence cases. Another point of concern is the general ruling that if parties to a litigated matter undergo mediation than generally the costs of the mediation (which will include the mediator’s fee) are not recoverable as part of the normal legal costs paid to the successful party. The costs involved in mediation are either waived or, if the claimant is successful, deducted from the claimant’s damages.

Whilst clear evidence on the role of mediation in personal injury or clinical negligence claims is lacking at present, anecdotal evidence suggests that in practise these issues are not as problematic as they might seem. In one asbestos case for instance, the mediation process was put to good effect and the parties were able to conclude the claim at the mediation appointment at court. There it was found that the mediation appointment lead to both parties being fully prepared and an opportunity to reach a settlement if at all possible. Costs were also resolved at the appointment showing that a mediation appointment can be useful to parties in concluding a claim earlier than otherwise might occur, which is beneficial for both the parties and their legal representatives.

The role of mediation in clinical negligence is interesting in that in many such cases the defendant will be represented by the NHS Litigation Authority. There has always been disquiet voiced about the amount paid by the NHLSA to successful claimants and their legal representatives and indeed the recent report on the costs of civil litigation once again refers to this. What is perhaps less well reported is the often seeming reluctance of the NHSLA to negotiate or discuss liability for claims at an early stage, thereby potentially reducing costs. It maybe that greater use of mediation might hasten this process.

Another useful alternative in clinical negligence claims to the normal litigation route might be what could be called “neutral evaluation” of a claim. A clinical negligence claim will obviously involve medical evidence and this may be complex in nature. Both parties might submit their evidence to a neutral third party, suitably medically qualified, who would evaluate the evidence and then present their findings to the parties. The advantage here might be a hastening of decisions concerning liability to the benefit of all concerned. This process of neutral evaluation has received support in the recent report on civil litigation costs by Lord Justice Jackson.

The motivation to mediate from the regulatory framework, the cases and the courts themselves will undoubtedly mean it will be encountered more frequently in the coming years by personal injury and clinical negligence practitioners. It maybe that some of the initial reluctance to mediate in these sorts of matters maybe overcome with the more widespread appointment of mediators experienced in these areas, something reflected upon in the recent report by Lord Justice Jackson on civil litigation costs. The Jackson report stopped short of making mediation compulsory but certainly encouraged and promoted its use and has suggested that all lawyers be further educated in its use and benefits. Forward thinking lawyers will be thinking about its use and how it might benefit clients in pursuing their claims.