Concluding a personal injury or clinical negligence claim on behalf of a claimant is often a bittersweet victory.  Even after achieving the best possible outcome for the claimant, ultimately, the claimant still has to live with the consequences of another individual's negligent act which caused them harm.  

In my experience, there often remains resentment over why the accident occurred in the first place and why the claimant had to go through an often lengthy and stressful litigation process to succeed in recovering a fair level of compensation. Regardless of what that sum of money ultimately is, the fact remains that no amount of money can take away those negative emotions.

Whilst not currently widely practised in personal injury or clinical negligence litigation, mediation potentially offers an alternative course of action allowing for the possibility of a more satisfactory outcome for claimants. As the legal profession in Scotland are required in terms of guidance from the Law Society of Scotland to advise clients on all methods of dispute resolution, the question must be posed as to why mediation is not used more frequently.

Mediation can allow the claimant to remain in control of their case. Whereas at Court, a claimant has to accept the Judge or Sheriff's verdict and valuation of their claim, the claimant can walk away from mediation process if they are not content with the outcome. This is important as once a solicitor is instructed, claimants often don't feel in control of their case. This is not down to any fault of the solicitor, but due to the fact that they have passed over the conduct of their claim to another individual who has to comply with countless rules, processes, protocols and procedures of which the claimant has no prior experience.

The Court rules require parties to hold a Pre-Trial Meeting at least one month prior to the Proof (i.e. the full evidential hearing with witnesses) taking place. This is an opportunity to discuss the issues and explore whether settlement of the claim is possible. This process results in a high number of claims settling at this stage. However, whilst the claimant ultimately decides whether to accept or reject any offers which are made at this meeting, they have limited involvement in the discussions which take place between the solicitors and Counsel for both sides. This is due to the fact that these discussions generally take place in a separate room and are subsequently reported back to the client, meaning that they do not witness those discussions first hand. Mediation passes the power back to the claimant as they are present during the mediation process. It would have to be accepted that the individual responsible would not always be present but insurers and their lawyers for the defender would be allowing the claimant's voice to be heard.

In a large number of cases, liability is contested and never admitted, even if the case settles. This is often a tactical decision taken by the defender, however, it can cause distress for claimants. As the mediation process is confidential, parties can freely discuss matters without fear that their words will be used against them at any future hearings. This means that it may be possible to secure an apology for the claimant's suffering, an acknowledgement of what they have been through or even reassurance that measures have been put in place to make sure that it won't happen to someone else. The flexibility of the mediation process allows these discussions to take place, which may ultimately help the claimant's healing process.

It is important to recognise, however, that mediation may nonetheless be a difficult experience for the claimant and it is right that they are prepared for this. Whilst the mediation is an opportunity to put forward the strengths of the claimant's case, it is also an opportunity for the defender to put forward its weaknesses. This may be difficult for the claimant to hear. Nevertheless, it does allow a claimant the potential to understand the risks in progressing their case and any areas of concern.

Mediations do not always result in the resolution of a dispute but the track record is good and where a case is not resolved, often the issues at stake are narrowed. It is important that parties are well prepared before the mediation takes place and that there is a fully informed understanding of the strengths and weaknesses of a claim. This will entail a mind shift in how cases are presented. Often it is only at the Pre-Trial Meeting that parties have reached this point but for mediation to work all parties concerned must reach this point at an earlier stage. From the claimant's point of view that must be a good thing.

A challenge to the use of mediation is how this is to be funded, given that arguably the current court rules on expenses do not sit well with mediation.

Whilst mediation is not widely used in Scotland to resolve personal injury and clinical negligence claims, as compared to other areas of litigation such as family and employment disputes, this is not congruent with the solicitor's duty to advise on all methods of dispute resolution. It is likely that change is coming. The Scottish Government is looking at the increased use of mediation in the civil justice system in Scotland with a consultation paper likely to be forthcoming. Given the pressure which has been put upon the Scottish Court Service as a result of the pandemic, there is an obvious argument for promoting alternative dispute resolution. However, leaving the practical realities aside, making use of this process may allow for claimants to conclude their claims in a more satisfactory way, leaving behind any resentment over why the accident happened and allowing them to move on with their lives. Rather than await the outcome of the consultation paper, it is suggested that all lawyers involved in the areas of personal injury and clinical negligence should be reviewing their cases in line with Law Society guidance to consider which method of dispute resolution is best suited to their clients.

By Nicola Edgar