When medical treatment goes wrong, the prospect of a legal claim against a care provider can feel daunting. Patients and families may be dealing with ongoing health problems, financial pressures, emotional strain and unanswered questions about what happened.
Mediation can offer an opportunity to resolve a medical negligence dispute through supported discussions, potentially avoiding the need to pursue a formal legal claim. It can also help settle a claim that is already underway.
Mediation can create space for explanations and acknowledgement of the impact on the patient and their family. Its suitability depends on the circumstances, the available evidence and what the parties are ready to discuss.
What is mediation in a medical negligence claim?
Mediation involves an independent, impartial mediator helping the parties explore a possible settlement. In a medical negligence claim, this usually involves the patient or their representative, their legal advisers, and representatives of the healthcare provider and its insurer or indemnifier.
The mediator facilitates discussions rather than deciding who is right or how much compensation should be paid. The patient’s solicitor represents their interests, presents their case and advises on settlement proposals. These are separate roles: the mediator remains impartial, while the solicitor acts for their client.
For claims involving NHS providers in England, NHS Resolution manages claims on behalf of its members and operates a mediation service through external, independent providers. NHS Resolution is involved on the NHS side of the claim; it is not the independent mediator. Mediation can also be considered in claims involving private healthcare providers.
A solicitor has an active role: investigating the claim, preparing the patient and negotiating on their behalf. Careful legal preparation helps patients make informed decisions about any proposed settlement.
Why consider mediation?
For a patient whose life has changed after medical treatment, resolving a claim may involve several priorities. Compensation may be needed to address the financial consequences of an injury, while questions about the care received remain unanswered.
Mediation can provide an opportunity to discuss:
- A financial settlement of the claim
- An explanation of what happened during treatment
- An apology or acknowledgement of the patient’s experience
- Information about lessons learned and changes made by the healthcare provider
The mediation process gives patients and families time to describe their concerns and receive explanations directly. These discussions can address matters that would receive limited attention in negotiations focused solely on the legal claim.
A patient might, for example, want to understand why a concern they raised was not acted upon. A family may want to know whether a hospital has changed a procedure following the incident. Identifying those questions before mediation helps the parties prepare meaningful responses.
None of these outcomes is guaranteed. The people attending, their knowledge of the events and their willingness to engage will affect what can be achieved.
When might clinical negligence mediation be appropriate?
Mediation can take place before a formal claim is made, while a claim is being investigated, or once settlement negotiations are underway. The appropriate timing depends on whether the parties have enough information to assess the issues and any proposed settlement.
For example, a healthcare provider may have accepted responsibility, but the parties disagree about compensation. Alternatively, responsibility may remain disputed, while both sides are prepared to explore a settlement.
Medical records and independent expert evidence may be needed to understand whether the treatment was negligent, whether it caused the injury and the patient’s likely future needs.
If the long-term effects of an injury are still unclear, a final settlement may be premature.
A solicitor can advise on the evidence needed and whether mediation would help at that stage.
Courts in England and Wales can also order parties to engage in alternative dispute resolution.
Preparing the case for mediation in a clinical negligence case
Effective representation begins before the mediation session. A solicitor needs to understand the strengths and weaknesses of the claim, the issues the healthcare provider disputes and the evidence supporting the compensation sought.
Where mediation appears appropriate, the solicitor can propose it to the other side. If the parties agree to proceed, the solicitor can work with the other legal team and the mediator to arrange the session, agree who should attend and identify what information is needed.
Preparation may involve obtaining medical records, instructing appropriate experts and gathering evidence of financial losses and care needs. The clinical disputes protocol recognises that expert opinions may be required on the standard of care, the cause of the injury, the patient’s condition and the value of the claim.
For the client, preparation means understanding what will happen, what decisions may arise and what they want the discussions to address. Questions about treatment, requests for an explanation and concerns about future care can be raised in advance.
What happens during medical negligence mediation?
The arrangements are agreed in advance and can be adapted to the case. Mediation may take place in person or online, with separate rooms or private virtual spaces for the parties and their advisers.
The mediator meets with each side, explores their concerns and carries proposals between them. There may also be a joint discussion, where appropriate, to give the patient an opportunity to explain the impact of the incident and hear a response from the healthcare provider. Patients do not have to spend the whole session facing the other side.
The patient’s solicitor puts forward their case, responds to the other side’s position and can discuss settlement terms. The solicitor can discuss proposals privately with the patient, explain their implications and seek instructions before responding. The patient should understand both the amount offered and what accepting the proposed terms would mean for their claim.
Negotiations may continue during the session and carry on afterwards.
Mediation discussions are generally confidential and conducted on a without-prejudice basis, meaning settlement discussions generally cannot be used as evidence in subsequent court proceedings. The scope and any exceptions should be explained beforehand.
Does mediation mean accepting less compensation?
Considering mediation does not commit a patient to accepting an offer. The purpose is to explore whether an agreement can be reached with a clear understanding of the evidence and risks.
A solicitor should explain how any proposal compares with the assessed value of the claim, taking account of the evidence, disputed issues and risks of continuing. An explanation or apology should not obscure the need to assess the financial terms carefully.
Participation and settlement are different: the mediator cannot impose an agreement.
What happens afterwards?
If agreement is reached, the solicitors ensure that the settlement terms are recorded accurately in writing. Settlements involving children or people who lack capacity to conduct the proceedings require court approval.
If the claim does not settle, the solicitor can advise on the next steps. Further negotiations may follow, and some claims settle after mediation once the parties have had time to reflect. Where issues remain unresolved, court proceedings may be necessary.
How Howe+Co can help
Howe+Co advises and represents clients in clinical negligence claims. We can investigate the circumstances of your treatment, assess the evidence and advise on the options for pursuing your claim, including mediation.
Where mediation is appropriate, our role is to prepare your case, represent your interests during negotiations and advise you on any proposed settlement. We will also discuss the questions and concerns you want addressed, so that preparation reflects what matters to you as well as the legal issues.
If you have concerns about medical treatment and want to understand your legal options, contact our team here for advice.