Posted by Paul Kirkwood Law Society of Scotland Specialist Accredited Commercial Mediator and Litigation Solicitor with commentary by Philip Grundy, Barrister, Recorder and Mediator.
Last year an old friend and collaborator of mine, Philip Grundy got in touch to invite me to speak as a headline contributor at a conference he was organising on the use of Mediation as a primary tool to assist in both the rehabilitation of people with acute brain injury or with catastrophic injuries, and the wider settlement and resolution of their legal claims.
The conference was entitled ‘Mediate 2 Rehabilitate’, organised under Philip’s ‘Solve Mediation’ banner and held in conjunction with Headway Lancaster Morecambe Bay (led by Philip’s wife Janet Staff) with contributions also made by Calvert Connections who were opening a new Neuro-Rehabilitation clinic in the Lake District.
Philip and I go back to 2004 when I worked as a specialist personal injury solicitor with a significant practice in catastrophic injury, acquired brain injury and amputation cases. We worked together in these cases, in which Philip also specialises as well as considering complex MIB cases and Periodical Payment cases.
Some 4 ½ years ago I decided to retrain as a commercial mediator and develop a practice in legal mediation, including Personal Injury, Commercial and Employment law cases. Independently of me Philip also developed an interest in mediation and qualified as a mediator himself. In addition to working as a Barrister and as a Recorder he also has a mediation practice-Solve Mediation.
It became increasingly apparent to both of us that traditional court litigation simply was not serving very seriously injured people well at all. This was particularly the case when dealing with the immediate needs for medical treatment, including physical and neurological rehabilitation before and during the normally lengthy litigation process. This largely stems from the adversarial stance taken by claimant and defendant/insurer solicitors, where often one or more both fail to engage with the other in respect of these needs. It is our experience that this failure to engage is fuelled by a complete lack of trust. This was the area that the conference was designed to target. The ‘in’ for Philip to seek my involvement, apart from my background in PI and mediation, was to give the conference, based in Lancaster, North West England, an insight into mediation developments in Scotland. My contribution was entitled ‘A Mediator’s View from North of the Wall-Changes Afoot in the World of Scottish Mediation-A Mediation Bill Is on the Immediate Horizon’. It was hoped that positive reflections on this would feed into the thought processes of both judges and PI solicitors who would be present at the conference.
Who Was There?
The keynote speaker at the conference was Mr Justice Anthony Hayden, Vice-President of the Court of Protection, and a Judge of the High Court of England and Wales. He gave great insight into the concerns and difficulties that indeed do arise in the participation, autonomy, and consent giving of, people who had significant mental disability or legal incapacity, both in the court process and in the mediation process. This is particularly so about their ability to participate and make decisions in, or give instructions in mediation, and resolution or settlement discussions. He made a significant contribution later in a panel discussion on the subject of considering mandatory mediation with regard to rehabilitation, both before, and during any court proceedings. This will be considered in greater detail below.
In addition, the conference was sponsored by Simpson Millar Solicitors whose contribution was made by Ian Cohen solicitor and Partner with over 25 years of experience in clinical negligence cases and head of that firm’s personal injury and medical negligence team. Also present from the Claimant’s side of the fence was Ian Christian, solicitor and Partner of Irwin Mitchell Solicitors and head of that firm’s London personal injury department. For the defendant side Philip D’Netto Solicitor, a well-known defendant/insurer solicitor at Plexus Law, and head of its catastrophic injury department.
Other mediators were present, and there were also significant contributions from medical practitioners in the field including Dr Howard Jackson, a clinical neuropsychologist. There were further contributions from a number of occupational therapists and nurse specialists dealing with neuropsychology and complex case management. A wide variety of appropriate legal, medical and mediation representatives were in attendance from all sides of the argument to discuss the various issues arising.
Two panel discussions took place throughout the day; from my perspective these were perhaps the best and most informative sections of the conference, with lively panel discussions (including significant disagreement) and active participation from the floor-there were more than 200 attendees.
Mr Justice Hayden pointed out that the Family Court in England was very much supportive of mediation, especially in international abduction cases where he was aware of a number of cases that had settled through mediation. He did though point out practical concerns around mediation involving cases arising from the Court of Protection. Specifically, he was concerned about who speaks for an incapacitated person, who is unable to give legal instruction to agents or make decisions in a mediation. His experience in the Court of Protection was that matters often became polarised in court with a significant lack of compromise between the incapacitated Claimant’s family, or between the family and treating doctors.
This observation fed into a discussion about injured parties and their autonomy and legal capacity when making decisions. This is particularly so for those with acute brain injury (ABI), where legal capacity can be impacted and difficulties can arise between family members and trustees under Personal Injury Trusts. My experience, having set up Personal Injury Trusts for ABI affected clients, and having been a trustee in such a Trust, is that these potential difficulties or conflicts can be overcome and mediated given that those people are motivated by concern for the best interests of the injured party. It is entirely possible for a mediator to speak to a severely injured party in advance of the mediation and often one finds that many people with ABI retain significant aspects of capacity and whilst cognitively limited in some areas, they may still have significant insight into their condition, their needs, how they would like these to be met, and by whom! The situation is not dissimilar for mediators in Additional Support Needs/Special Education Needs cases where children are involved, and who do have legal rights and views even where they may have affected capacity. In those cases, mediators will still seek to ascertain their views and ask their legal representatives about how these are being taken into account in advance of mediation and at the mediation. In many catastrophic injury cases and clinical negligence cases, the injured party does have legal capacity and is capable of providing legal instruction and making their own decisions in mediation.
The timing of mediation – before and during litigation.
The discussion about capacity and autonomy led the panel on to a discussion about the fact that, in England (and Scotland as well as it happens) in personal injury litigation involving serious injury cases, there is often little or no discussion between both parties and their legal representatives about the medical rehabilitation treatment needed by injured parties and how that should be sourced and paid for. Of course, there is the Rehabilitation Code and insurers will often offer rehabilitation through an independent provider where that provider reports back to both the claimant and defendant legal representatives. However, that is often viewed with deep suspicion by claimant solicitors.
Phil D’Netto of Plexus Law indicated that when he was instructed in these types of cases by defendant insurers, he always offered to have an early meeting with the injured party/their family/the claimant solicitors. That meeting would be to look at the issue of rehabilitation and medical treatment for the injured party; however, he observed that this offer is rarely taken up.
In response Ian Christian (Irwin Mitchell), and Ian Cohen (Simpson Millar) explained that claimant solicitors are suspicious of the motivation behind such offers. It was felt that the real reason for the defendant/insurer solicitors’ motivation was that they wanted (on behalf of the insurer client) to become involved in, and try to take control of, the actual form of the rehabilitation treatment. This included control of who provided it, what the cost of that was, and generally to try and drive the cost of treatment and thus the value of the claim down. Claimant solicitors in those circumstances preferred to keep control of client rehabilitation and where possible to source it themselves, often funded through interim damages by award of court. Claimant solicitors, in not being willing to engage were clearly seeking to look after the best interests of their clients, as they saw it, and equally Defendant solicitors the same.
Ian Christian and Ian Cohen also noted, that in clinical negligence cases involving NHS Resolution, the solicitors who represented the NHS would never engage with Claimant solicitors pre-litigation. This was particularly in relation to the question of medical rehabilitation or disclosure of relevant liability documents. This makes litigation inevitable and also caused a genuine problem with Claimant solicitors when seeking to obtain medical rehabilitation support for their clients. I raised the point that in Scotland some consideration was being given to mandatory pre-litigation mediation.
In short there often appears to be little or no trust between claimant and defendant solicitors, each doubting the genuine motivation of the other, and neither was really willing to engage in an open or collaborative way. This mindset needs to change as does the approach by both sides.
Mr Justice Hayden had listened to these exchanges with great interest. He observed in what was clearly an immediate reaction that he felt pre-litigation it should be mandatory for all parties to engage with each other to discuss the medical rehabilitation and needs of injured parties. He voiced his displeasure at the failures of claimant and defendant solicitors to do so!
Trust and Mandatory Mediation.
It is clear that there is very little trust between claimant and defendant solicitors and that by and large a joint approach to medical rehabilitation for badly injured people is unwelcome at present. This in itself is very unfortunate, particularly in claims where liability is evident and could be admitted at an early stage. The insurers have deep financial pockets, whereas claimant solicitors will often have to rely on obtaining interim damages to fund medical rehabilitation treatment, the cost of which may or may not, be recoverable as part of special damages. The cost of such rehabilitation treatment can be extremely high and a failure to recover part or all those costs can have a significant effect on the injured person’s damages. Arguably the rehabilitation needs of badly injured people may not be optimally met as a result of this stand-off.
It seemed to me that the way to break this conundrum – and here Philip and I were in agreement – was to institute mandatory mediation, both pre and during litigation. In this both parties and their representatives would be brought together with the mediator (experienced in ABI and catastrophic injury cases) as an independent third party neutral, who would look to facilitate an open discussion. This would be centred on the appropriate rehabilitation treatment needed for the injured party, who was best placed to provide that and at what cost to which party. In those circumstances it would be part of the mediator’s job (it always is) to inculcate trust and empathy between parties and their legal representatives and to hopefully dissipate the mistrust about the motivations of each party which undoubtedly exists. Key decisions could be arrived at by both parties and their legal representatives, through consultation with each other in the mediation. Of course, parties will not always agree on what rehabilitation measures should be provided and when that happens, that will simply make clear where there are genuine areas of disagreement as to diagnosis and necessary treatment which will help crystallise legal issues in that regard. However, in my experience most mediations do result in agreement, even where that is only partial, and that agreement can be taken forward constructively.
Such rehabilitation mediations would take place before and during litigation, and would be the forerunners to a Settlement Mediation in the run-up to trial, where parties and the legal representatives would seek to resolve the claim. Again, in my experience, the involvement of an independent mediator can often help to bridge apparently unbridgeable gaps between parties. Mediation gives a voice to the injured party which is often missing in pre-trial meetings and this in itself can often help unlock an impasse. The injured party is more likely to buy into a settlement negotiation and agreement if they take an active part, because they will be owners of that decision. Coincidentally this is likely to reduce “buyer’s remorse” and complaints from unhappy clients after the event. In my view these Settlement Mediations should also be mandatory; of course, if parties are genuinely unable to agree, they will still have the right to go to trial, but these proposals ought to significantly cut down on the number of cases that are unnecessarily run to a hearing at significant public cost. We need a collaborative, inquisitorial justice system in these cases not an adversarial one. Mandatory mediation would go a long way to push that forwards and it would put the involvement of badly injured claimants and their rehabilitation needs front and centre!
Posted by Paul Kirkwood, Law Society of Scotland Specialist Accredited Commercial Mediator and director of www.MNCRS.co.uk – Mediation, Negotiation and Conflict Resolution Services.