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NHS Resolution - Mediation Success
The first year’s NHS Resolution Annual Report and Accounts 17/18 was published on 12th July and makes for excellent and positive reading. In terms of mediation, the report highlights NHS Resolution’s success in achieving and going beyond their goals in what has been the first year of a five-year strategy.
I spoke with Julienne Vernon, Solicitor and Head of Claims Management Quality for NHS Resolution for her thoughts around this success.
L: One of the goals set was to increase the use of mediation in healthcare and to reduce the number of cases proceeding to Court. In previous years, how was mediation perceived on either side? What do you think were the barriers to cases being mediated?
J: As an organisation we have always used mediation as a forum for claims resolution and we have historically found that group action claims have a good mediation success rate. The barriers are really to do with the mindset on both sides and the cultural change required in moving away from only making written offers / Part 36 offers and the parties moving from the view that the only effective mode of alternative dispute resolution is a round table discussion between the lawyers. Mediation is a different settlement process. The claimant is the centre of the proceedings as opposed to the lawyers discussing the formal legalities.
L: How did you go about setting the target number of cases to be mediated in the first year?
J: We set a target of 50 cases based upon our experience of our mediation pilot. In 2014 we launched a mediation pilot scheme over the course of a year where we targeted 50 cases involving elderly care and/or fatalities, so a variety of high emotions were involved together with some low value cases where the claimants were seeking more than just compensation. For example, claimants/ families wanting to know that the NHS had taken on board any failings or receiving the apologies they were seeking. It was initially difficult to generate numbers of mediations under the pilot because of the mind-set on both sides and a variety of other barriers. We opened the criteria of cases to include all types of clinical/EL/PL/Personal Injury.
L: How many cases were referred for mediation?
J: As can be seen in our Annual Report and accounts 2017/18, we exceeded the target of achieving 50 mediations by undertaking 189 mediations. We have three mediation service providers including one dedicated to mediating costs disputes. We were able to promote the benefits of mediation by taking forward a number of initiatives; we provided training to our legal panel, our own staff and our providers have carried out training to claimant lawyer firms. We have attended and presented at several conferences where promotion of mediation is on the agenda. Mediation as a tool helps to short-circuit the legal process and get to the heart of the issues. It can be introduced at any time during the process but the earlier the better.
L: Does that number include those where mediation was recommended but not taken up?
J: The numbers referred to are all those cases mediated – there were 209 actual cases referred to within the report.
L: Without being too intrusive, have you identified a certain criterion of cases that you have found most suited and successful for mediation?
J: We have tried not to be too prescriptive. The traditional perception of mediation was that it was only suitable for cases deemed too difficult and again we are trying to steer away from types of cases being selected. We have seen a variety of matters at different stages and with different values all benefiting from mediation. In particular we have had a number of successes with both cerebral palsy cases and low value claims being settled in this way. The desire for all parties to engage in the process is the main requirement.
L: These are highly sensitive cases and not just about compensation. What do you think was the most valuable outcome to patients in not pursuing cases to Court?
J: The opportunity to explore what happened. Mediation lends itself to explanations being given and received. It is an opportunity for the claimant and/or families to be able to ask questions of those in authority and of being heard.
L: What feedback have you had generally from Solicitor firms and Patients themselves?
J: Our service providers ensure that all participants to mediation are given a Q and A feedback survey to be completed anonymously and the feedback has been very positive. The parties welcome the fact that a neutral third party is present and by starting in separate rooms with the mediator shuttling between parties ensures that the issues and potential remedies are explored and defined at an early stage in readiness for a joint meeting.
L: Clearly a highly successful first year! How do you intend to build on this over the next four years?
J: We should like to see more personal injury and costs cases being mediated
With respect to our target for the year 2018/19, we raised this to 75 cases, although we have exceeded that number already.
We want to see more cases resolved by resolution as opposed to the lengthy process of litigation. We want to work more closely with patient and safety teams, claimant organisations and work jointly and in collaboration with the market on both sides.
With sincere thanks to Julienne Vernon and Jessica Clinkett for their agreement to this interview.
Liz Kendall
Vice Chair – DASLS Mediation Panel
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