The NHS Litigation Authority (NHSLA) has launched a procurement exercise for its first mediation panel, which will look to resolve claims for personal injury and clinical negligence and those arising from claims for legal costs.
The £160,000, two-year contract will see the appointment of two, or possibly three, providers to mediate injury claims, and one for costs claims, starting from 5 December 2016.
NHSLA chief executive Helen Vernon said: “Mediation is an excellent forum for dispute resolution in the NHS, providing injured patients and their families with an opportunity for face-to-face explanations and apologies when things go wrong and reducing the need for unnecessary litigation.
“We fully embrace mediation and believe that there is an appetite in the legal community to do more in this area. We have used mediation to good effect throughout our 20-year history, including in high-profile cases and group actions.”
The authority’s recent annual report showed that it has been piloting a mediation service focused on fatal and elderly care claims. “The pilot was evaluated positively and in the coming year will extend and expand the service as a result. We hope that this will increase the number of disputes resolved without going to court. In a sample of 47 cases where mediation was completed, 81% were settled without the need for a potentially costly and upsetting court case.”
This was against the background of a continuing rise in costs, which now account for 55% of the value of clinical negligence claims worth less than £100,000, by far the highest on record. It was 35% a decade ago.
The report showed that, overall, the NHS paid out more than £1.4bn to patients and their legal representatives in 2015/16, up from £1.1 bn.
Nina Ali, a clinical negligence partner at London firm Hodge Jones & Allen, said: “Mediation can play a larger role in resolving clinical negligence disputes. However, in order for the mediation to be meaningful and fair, the claimant must enter the process fully armed with the information and evidence that they need.
“In particular, the claimant must have sufficient time to investigate and obtain legal advice and representation and be able to access independent medical expert evidence as necessary. Further, the mediator must be independent and approved by both parties.
“Finally, engaging in the mediation should be on a ‘without prejudice’ basis, so that if the case does not resolve, the claimant still has the right and recourse to litigation.”