A director of a mediation service which has just concluded its 1,000th case for the NHS says there is still a “huge untapped market” for mediation, both in clinical negligence and personal injury cases.
Paul Balen, mediator and director of Trust Mediation, predicted that the proportion of NHS Resolution cases resolved without court proceedings would increase from the current 77% to as much as 95%.
Mr Balen said that, when Trust Mediation signed a contract to provide mediation services for the NHS in 2016, it was envisaged that mediation would be for “smaller cases”, but it was soon realised that it was suitable for “every kind of case”.
Around 40% of Trust Mediation’s cases now involve damages claims of over £750,000, and Mr Balen, who manages the contract with NHS Resolution, said eight-figure sums were “not exceptional”.
Preparing a case for mediation was not the same as preparing a case for trial, he explained, but practitioners need a good understanding of the likely range of values for the award, while “buy-in from the claimants” was crucial.
“Early resolution has huge advantages for claimants, such as speed and not going to court, and advantages for solicitors in early receipt of costs.”
NHS Resolution’s most recent annual report said it had concluded a record 77% of claims in the 2021-22 financial year without court proceedings. Mr Balen said that only a small minority of these was settled through mediation, and there was a “huge untapped market” both in clinical negligence and personal injury.
“The market for mediation in personal injury cases needs to be opened up and more widely recognised.
“Judges are going out of their way to say to people ‘you must mediate’. There are plenty of cases where parties have won trials but been penalised on costs because they have refused to participate.
“I’m not convinced that making mediation mandatory is the answer. Undoubtedly it works better when it is voluntary but, guided by the courts who see it as a key part of the process, if one party wants to mediate, it’s going to be incredibly difficult for the other to turn it down.”
Mr Balen said there needed to be a “cultural change” within law firms to overcome scepticism about mediation.
“Early resolution does not necessarily mean a lower settlement figure, but it can involve a compromise being taken by all parties in order to avoid being involved in protracted litigation.”
Tim Wallis, mediator and chair of Trust Mediation, commented: “Defendants are now, in the main, convinced about the effectiveness of mediation. Claimants however, less so.
“We’ve worked with over 200 claimant firms, from which we can clearly identify several stand-out firms who embrace mediation.
“There are also around 100 claimant firms who have only ever done one mediation, which begs the question: why is there such a disparity in approach?”
He added: “Settlement used to be considered at the door of the court, but now well over 70% of mediations are pre-CCMC [costs and case management conference] and over 50% pre-issue. We’re seeing a clear acceptance by firms for a stocktake before issue.”