24 October 2024
Stephen Winn, a senior solicitor in the clinical negligence department looks at Alternative Dispute Resolution.
Alternative dispute resolution (ADR) is actively encouraged in any form of conflict including personal injury and clinical negligence claims. This is on the basis that litigation and involving the courts should always be seen as a last resort. All parties are actively encouraged to consider settlement at any stage of the claim process to settle a dispute or narrow the issues.
The main purpose of ADR is to provide parties with flexibility and a focus on settlement rather than conflict. There is the added benefit that ADR provides an opportunity to resolve cases early thereby avoiding the stress and formality of court hearings. However, there is no guarantee that a case will settle just because you have explored ADR.
ADR can be suggested at any time, either before or after court proceedings have been issued and is very much encouraged in clinical negligence litigation. Indeed the pre-action protocol for resolution of clinical disputes makes it clear that litigation should be a last resort and that parties should consider whether ADR might enable them to resolve their dispute without commencing court proceedings. Where proceedings have been issued, the court will give directions as to how the case should be conducted and may include a direction relating to ADR.
If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court.
In addition, further proposed amendments have been made to the Civil Procedure Rules to encourage greater use of ADR. The overriding objective is to deal with a case justly and with proportionate costs, and now the courts can order ADR to be engaged rather than just promoting it if deemed appropriate. The amendments are due to come into force in October 2024.
The main forms of ADR in clinical negligence cases are:
Mediation
With mediation, an independent and accredited mediator will be instructed to help the two sides in a dispute to focus on the issue and consider the best way of solving it. The needs of both sides are taken into account, and you try to find common ground to find the best solution to the problem. The mediator is not there to make a decision but will help both sides to agree a solution.
Mediators might be employed by the organisation you are complaining about, but they should be trained to be impartial and help both sides reach an agreement.
Round table/Resolution meetings
RTMs allow the parties to explain their respective positions and are a useful way to discuss the strength and prospects of a claim. The process is particularly suited to claims where the merits of the case have been investigated and the issues in question are capable of being resolved between the parties with an open and constructive dialogue, often supported by a peer review. It is also an effective way to try to narrow the value of the claim promoting early settlement if possible.
Stock takes
Stock take meetings allow the parties to work collaboratively, discuss the merits of claims and allow all parties to make better informed decisions about resolution. These may be combined with RTMs to ensure that any issues are narrowed, and any discussions focused on the remaining points of dispute and if any can be further resolved.
Early neutral evaluation
In April 2023, NHS Resolution (NHSR) working in partnership with claimant law firms, launched a pilot to test the benefits and effectiveness of early neutral evaluation. This process involved the parties appointing an independent evaluator with specialist knowledge of the subject matter to give an assessment of the merits of their respective claims. The evaluation is non-binding and without prejudice, so no reference can be made in any proceedings to what happened in the early neutral evaluation process unless otherwise agreed by the parties. The pilot continued throughout 2023/24 and is due to complete in 2024/25. Following its conclusion, NHSR hope to share the outcomes in a thematic review and may have further information on the effectiveness and if it is considered beneficial to roll out to further claimant firms.
Successes
Latest NHSR figures show that 81% of clinical claims were resolved without the need for litigation which is a very clear indication that ADR works and will hopefully continue to work saving time and reducing costs and promoting early resolution of claims.
