Using mediation as a dispute resolution tool in healthcare disputes in Ireland
In this article, we examine the particular benefits of mediation for medical negligence cases and the new obligations on solicitors advising claimants.
Mediation Act 2017 - general points
Mediation is a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a neutral third party (the mediator), attempt to reach a mutually acceptable agreement to resolve the dispute. The mediator’s role is to identify the issues at stake and work towards finding an agreement that all parties find acceptable.
The Mediation Act 2017, which came into force in Ireland in January 2018, obliges solicitors acting for claimants to provide their clients with details of mediation services and information about the benefits of using mediation. The Act does not oblige a party to use mediation, as any such coercion would be at odds with the spirit of this resolution mechanism. In this respect, the courts have commented that, “any element of compulsion attendant upon a reference to mediation will certainty not enhance its prospects of success" (Ryan v Walls Construction Limited  IECA 214, Kelly J, para. 16).
The mediation can take place at any stage in a claim process but, in the usual course, it would be advisable to proceed to mediation only when there is adequate information available to the parties and as a corollary to the mediator. In healthcare disputes it would, in the majority of cases, be advisable to obtain expert evidence before proceeding to mediation and to exchange expert reports before the mediation or as part of the mediation so that the parties and the mediator are fully informed on the evidence relating to the issues in dispute. If the parties enter into an agreement to mediate, the time running under the Statute of Limitations is automatically suspended.
Under the Act, parties are free to choose their own mediator. The skillset of the mediator could be key to a successful mediation and in healthcare disputes, particularly medical negligence claims, the parties might well be advised to consider engaging a mediator who is au fait with dispute resolution and healthcare litigation.
An agreement reached at mediation can be executed by the parties to make it legally binding.
Mediation - benefits
In a healthcare dispute, particularly in the context of a medical negligence injury, patients are often looking for an explanation, an apology and an assurance that this adverse event will not happen to anyone else. These factors are often more of a concern than monetary compensation and yet patients find themselves litigating claims in circumstances where the explanation and apology sought may not be forthcoming.
Litigation can, unfortunately, lead to a communication vacuum, which can further polarise the parties and delay resolution. Mediation, on the other hand, enables parties to use their own voice which is frequently not heard in the adversarial and jargon-filled framework of the litigation process.
Where parties are seeking redress which is not available through the Courts, for example where an apology is sought, mediation may be especially suitable by offering a route to a more compassionate and less adversarial resolution than the litigation system. Where monetary compensation is not the primary focus mediation will be a particularly useful resolution tool.
However, when receipt of financial compensation is the primary motivation behind a claim and where the injuries are complex and life-long, mediation could present some potential difficulties, in the absence of the parties obtaining expert legal advice:
- ‘Under-settling a claim’ - If a patient has suffered a significant injury and there will be a requirement for compensation to cover future eventualities, it would be imperative that patients obtain appropriate expert reports before, proceeding to mediation, in order to quantify the claim and ensure adequate provision of information is given to the mediator. We would suggest that engagement of experienced healthcare solicitors to represent the parties is fundamental to the success of such mediations.
- Periodic Payment Orders (PPO) - in cases where patients have been catastrophically injured and where any compensation would best be met by a lump sum and continuing PPOs, mediation can still be employed, but Court approval of the PPO would be required in any case involving a minor. In cases involving a catastrophically injured patient we would suggest that it is imperative to involve legal teams to negotiate the parameters of the settlement and to engage a mediator who has experience dealing with such complex cases.
Mediation - cost efficiency
Mediation can also be a very cost-effective way of resolving healthcare disputes with studies from the United States showing that using mediation results in a 50% reduction in litigation costs and 40-60% saving in pay-outs, as compared to cases that have gone to trial.
NHS Resolution ran a pilot mediation scheme in the UK in 2014 in relation to a group of medical negligence claims. The results were very positive, with well over half of the claims settling on the day of the mediation or shortly thereafter, with resultant litigation cost savings. In December 2016, NHS Resolution formally launched its mediation scheme and, where there has been engagement by parties, it has been positive in bringing about earlier resolution of claims.
Kennedys’ healthcare team in the UK have championed the introduction of NHS Resolution’s mediation scheme and have successfully resolved many low and high value medical negligence claims at mediation.
Mediation - a recipe for success?
The success of any mediation is dependent upon both sides being willing to resolve the dispute and to be prepared to compromise, where necessary.
We would strongly encourage Irish health care providers and health care insurers to consider the merits of engaging in mediation early on in a healthcare dispute. Utilising mediation to resolve healthcare disputes will lead to earlier and less costly dispute resolution and will hopefully also leave patients feeling less alienated from the healthcare system and reduce the desire for a ‘day in court’, which is often not as therapeutic as a party might think.