Mediation in clinical negligence claims…a quickly changing landscape.
A synopsis of the Liverpool Law Society Clinical Negligence event

I was delighted to be invited to speak at the Liverpool Law Society Clinical Negligence event last week and thought that a synopsis of that seminar might be of interest to those who could not attend.
The law, procedure and costs rules relating to alternative dispute resolution (ADR) are moving forwards at pace and this will undoubtedly have a significant impact on the conduct of clinical negligence litigation moving forwards.
20 years ago the Court of Appeal’s decision in Halsey v Milton Keynes [2004] 4 All ER 920 that “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”
Then in 2023 the Court of Appeal in Churchill v Merthyr Tydfil CDC [2023] EWCA Civ 1416 determined that:
“The court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process…. proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.”
“The Court can stay proceedings for negotiation between the parties, mediation early neutral evaluation or any other process that has the prospect of allowing the parties to resolve their dispute . The merits and demerits of the process suggested will need to be considered by the court in each case.”
We have now seen a number of powerful amendments to the CPR, applicable from 1 October 2024. These include:
• CPR 1.1 (2) – The Overriding Objective – updated to promote the use of ADR.
• CPR 1.4 (2) – Active Case Management – includes encouraging the parties to use ADR.
• CPR 3.1 (2) – General Powers of Management – may now order the parties to engage in ADR.
• Pt 28 and 29 – Directions – must consider whether to order or encourage ADR.
• Pt 44 – expressly defines that a failure to participate in ADR is a relevant conduct issue when considering costs.
We also know that the Civil Justice Council is a strong proponent of making substantial changes to Pre-Action Protocols in the near future, to bring in a pre-action dispute resolution process, with a jointly prepared ‘stocktake’ report summarising the parties’ position on the issues in dispute, similar perhaps to the sorts of stocktaking set out within the Serious Injury Guide.
In lower value cases we have also seen significant steps towards integrating mediation into the litigation process –
• the Small Claims Mediation Service has come into effect with a free 1-hour mediation for small claims up to a value of £10,000, backed up by the recruitment of mediators and extra admin staff, hopefully freeing up 5,000 judicial sitting days per year.
• the Fixed Recoverable Costs regime for the new Intermediate Track allows an additional fee for mediation, but also includes cost caps for litigation, and incentives for settlement generally.
This year we have seen a number of important further decisions that all case handlers should be aware of, which help to demonstrate the situation that parties are likely to find themselves if they do not mediate, or if opportunities to mediate are not given appropriate consideration.
• Northamber PLC v Genee World Ltd [2024] EWCA Civ 428 – In correspondence the Claimant indicated that it “remains open to mediation” and asked the Defendant for “an indication, by return, as to their willingness to mediate”. In the High Court the Claimant’s invitation was described as “half-hearted” and but on appeal it was held that the Defendant’s silence was unreasonable and that, alongside their failure to properly explain their actions, resulted in a costs penalty in the form of an additional 5% on the recoverable costs of the action.
• Conway v Conway & Anor [2024] EW Misc 19 (CC) – The Defendants rejected the Claimant’s offer of mediation and even though they were ultimately successful their failure was seen to be a ‘serious concern’, and the Defendant’s costs were reduced by 25% as a consequence.
• Heyes v Holt [2024] EWHC 779 (Ch) – “a modern-day King Lear” – the court dismissed a summary judgment application and stayed the claim to enable a second mediation to take place.
At present facilitative mediation is the commonest form of ADR – where an independent mediator assists in facilitating a settlement without giving opinions of the merits of a case – and the NHS England Mediation Scheme is currently facilitative mediation only, but can be extended to evaluative mediation by agreement.
The benefits of mediation:
It is important to be familiar with how and why mediation or another form of ADR can help, and it is important to understand why ADR can be of benefit over and above a joint settlement meeting or exchange of Part 36 offers.
A mediator provides an invaluable, independent, and effective means of communication in a dispute process which is otherwise complex, stressful, acrimonious, expensive, or just plain slow.
Mediation is confidential, informal, flexible, and entirely Without Prejudice to any court proceedings. Unlike court judgments the outcome is not on public record, so participants tend to engage with more openness and more willingness to negotiate commercially.
Mediation allows parties to put traditional and often restrictive litigation rules to one side, allowing creativity, flexibility, and extra-judicial remedies in order to reach a mutually acceptable agreement whilst the parties retain control over the decision making.
Parties often feel much more ‘heard’ in a mediation than in a JSM or negotiations on paper because they are placed at the heart of the meeting, and both the mediator and the other side take time to listen to their experiences, either in person or via their representative. Often an impact statement can be read out, and claimants also have the opportunity to hear an apology or an explanation first hand in a private and non-adversarial setting which can be very empowering and there can be an opportunity for discussions to take place regarding changes to prevent future harm. Resolution doesn’t always necessarily involve monetary compensation but can be found through extra judicial remedies in a way that simply isn’t open to parties using the traditional channels.
In particular we all know that compensation can be poor in fatal accident claims, and bereaved families can struggle to settle their claims as they are reluctant to accept the limitations of the process, but mediation is very beneficial to them as it places the affected individuals at the very heart of the meeting, with the opportunity to be heard by both the mediator and the Defendant, which is so important and cathartic to many clients.
A mediator is invaluable where there is deadlock, or your relationship with your opponent is particularly difficult or entrenched on a certain point and you can’t make any progress in correspondence with them – you can be sure that the mediator is going to be challenging and reality checking them in an open and constructive way, with parties being much less likely to walk away from a mediation than a JSM.
If the courts are going to actively enforce these rules, which they clearly are, then the cost penalties, or other sanctions that a court may apply, which are as yet unclear, are important – if you’re otherwise going to be penalized, then go along and engage in the process. You can no longer ignore invitations to mediate or say that the claim is not suitable, or you can be pretty certain that sanctions are going to follow.
Defendants with strong cases are still entitled to attend a mediation and say, “This is why we are going to win, tell me why we are wrong” and if they maintain that view, they can still walk away at the end of the process and avoid getting penalized.
Mediation is no longer seen as a sign of weakness but a means of getting to what you want in the most effective way. We are always hoping to shift our counterpart’s risk assessment in order to get them closer to our position, whether that’s on breach, causation or quantum – a mediator can be an incredibly effective and financially proportionate way of shifting that risk assessment.
The whole process is quicker and easier than the alternatives – you don’t need to prepare a court-style bundle, you will get the benefit of a pre-mediation chat with the mediator to help you prepare both yourself and your client, and the mediator will be there to structure the meeting, to keep everyone on track and to facilitate a constructive dialogue in even the trickiest of situations.
The more you use mediation or other forms of ADR then the better the results you’ll get. Mediation is evolving quickly, and it’s becoming more and more integrated into the litigation process. Having it in your toolkit and knowing how to deploy it effectively will help you to build great relationships with your clients and opponents, improve cash flow and speed of resolving your case load, and avoid penalties.
For any more advice on mediation please don’t hesitate to contact me: