Why mediation?

In litigation, a claimant can seek only financial redress.

Disputes often arise from a misunderstanding around the details of events or poor communication. Discussion and explanation can encourage the parties to find common ground.

In mediation, both parties can set out their case and, crucially, emphasise the issues which matter most to them. The conversations and negotiations during mediation are not disclosable to the Court, making it a great way to facilitate open and honest communication about the dispute.

Mediation brings earlier settlements, reduced litigation costs and improved morale within the defendant organisation. In some circumstances, it can be the catalyst for changes to practice and procedure too.

Choosing mediation does not exclude the parties from reaching a financial settlement. It does pave the way for restoring relationships.

For these reasons, NHS Resolution strongly encourages Trusts to mediate when dealing with complaints, clinical negligence claims, and serious medical incidents.

We recommend that healthcare managers (both clinical and non-clinical) and clinical negligence lawyers undergo mediation training specifically geared for such scenarios.

Mediator Chris Danbury says: “Mediation provides a non-adversarial alternative to litigation when dealing with a dispute in a clinical context. I think it is the key to the restoration and maintenance of relationships between clinical teams and patients, family and friends.”

Confrontation benefits no one, as we saw in the case of Charlie Gard. In both his initial and final judgments, Mr Justice Francis specifically drew attention to mediation. He said that some form of mediation, where the parties can have confidential conversations to see what common ground can be reached, would help lead to a greater understanding between the parents and the clinical team in this scenario.

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Chris Danbury is a consultant intensive care physician and an experienced serious medical treatment mediator. Andrew Hannam is a Partner at Enable Law and an experienced clinical negligence mediator. Both are panel members of Trust Mediation, which provides mediation services under the NHS Resolution Scheme. They are strong advocates of the effectiveness of this method of dispute resolution.