The benefits of Alternative Dispute Resolution in clinical negligence cases

Authored by ARAG

Clinical Negligence solicitor and Management Consultant, Ian Cohen of the Cohen Consultancy explores how, through first-hand experience, he has shifted from Alternative Dispute Resolution (ADR) sceptic to advocate.

I must admit that I was a late convert to recognising the full benefits of ADR in clinical negligence cases. Even after being lead solicitor in the successfully mediated Alder Hey organs scandal, I remained unconvinced.

It was only whilst acting for a particular client in the George Rowland litigation that my view drastically changed. The case had become very polarised, and we agreed to mediate in a final attempt to resolve matters. I did not hold out much hope.

However, as part of that mediation, my client delivered what was effectively an impact statement. It was deeply moving and giving my client ‘a voice’ in this way allowed her to connect directly with other parties. As a result, the case was settled. After that, I realised that mediation, in fact any form of ADR, has a role to play in the right cases. As an ADR convert, I was committed to exploring how it could benefit my clients, my firm and yes, even my opponents.

In 2017, when the NHS Litigation Authority rebranded to NHS Resolution, it stated its intent to resolve more clinical negligence disputes without recourse to formal litigation, and to try to diffuse what had become a particularly adversarial environment. Not everyone was convinced at the time and doubts remain. However, it is undeniable that this intention has become a key priority of NHS Resolution policy.

Helen Vernon, NHS Resolution’s Chief Executive said in their latest Annual Report, “We have worked hard to achieve a shift in adversarial environment to one... where dispute resolution outside of the court system or other formal processes is no longer exceptional or novel.” The report went on to say, “We have increased our use of resolution (global settlement) meetings which involve parties gathering to discuss, share and agree solutions to progress a claim. These meetings were also convened to discuss a number of claims simultaneously, to save time and resources”.

I have experienced this approach personally and have attended numerous global settlement meetings during which multiple cases have been resolved, both by agreeing damages for my clients and an agreement of costs. Not every case has settled at these meetings, but my success rate is close to 85%, with some cases settling after the initial meeting or at a subsequent settlement meeting.

The advantages of ADR are numerous. Here are just a few:

Claimants: A much quicker resolution of their case is achieved. This does not necessarily mean a lower settlement figure but can involve compromise by all parties which may result in trading a reduced settlement for certainty and a faster resolution. How many clients would not be happy with such an outcome?

Claimant Law firm: Unlocking WiP and disbursements resulting in improved cashflow. Certain cases with borderline prospects are closed quicker; fee earners have increased capacity to take on more work or can focus on progressing other cases; and the relationship between claimant and defendant lawyers is improved.

NHS/NHS Resolution: A reduction in the overall damages and costs; a reduction in the caseload of case workers, freeing up capital reserves and, critically, freeing up clinical time spent defending such cases.

Global settlement meetings are universally embraced by all involved in the litigation process. ATE providers recover premiums quicker. Medical reporting agencies are paid quicker. Funders recover their capital outlay and interest quicker and, of course, pressure is removed from our already strained courts. This all comes at a time when increasing interest rates are putting pressure on law firms and their supply chains to reduce the time it takes to resolve cases.

So, if you have been hesitant about the benefits of ADR as a mechanism to resolve clinical negligence cases, then there has never been a better time to reconsider your position. You may be pleasantly surprised.