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...