Mediation: the north-south divide

The following article was published in Legal & Medical Issue 08 August/September 2004

Scotland is less enthusiastic about mediation than England, says John Sturrock, but things are getting better

‘Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expense and waste of time.’

These words of Abraham Lincoln, more than 150 years ago, find resonance daily in the work of professional people and their advisers striving to find practical solutions to internal and external disputes. While differences are inevitable in the workplace, prolonged conflict is not. The goal should be to find a satisfactory outcome as quickly and cheaply as possible while preserving present and future relationships between those in dispute, usually with the minimum of publicity and stress.

Supported by recent announcements and recommendations by the Scottish Executive and the Scottish Parliament, and by research showing the detrimental side-effects of conflict on organisations, a growing number of businesses, professional practices and public-sector bodies in Scotland are choosing mediation to achieve consensual solutions to disputes.

Two years ago, an expert group established by the Royal Society of Edinburgh recommended that clinical negligence claims should only go to court as a last resort. It recommended increased use of mediation to help resolve these claims.

Lawyers are finding increasing business from clients able to work creatively with them to achieve cost-effective outcomes. The value of this for medical practitioners, insurers, health sector management and the public is potentially enormous, whether in relation to practice management issues, staffing, allocation of scarce resources, inter-agency policy or complaints and claims by patients and others.

The financial cost of disputes can run to five or six figures - without taking into account the delays and waste of management and clinical time, the stress and the damaging effects on morale and reputation which disputes invariably create.

In a recent claim in Scotland, it was reported that a claimant abandoned his case after one day at trial, 16 years after the death of his wife in hospital. The claimant spoke of spending more than £40,000 and one suspects that the health trust will have spent at least as much, if not more.

This outcome highlights the need to find ways, where possible, to bring claims of medical negligence to a conclusion much earlier and more effectively than is often achieved at present.

The advantages of using mediation are not only the time and cost savings, but the fact that parties maintain control over the process and can get the key people around the table within a confidential and voluntary setting.

With the assistance of the highly skilled, independent mediator, supported, where appropriate by legal advisers and others with an interest, communication can be restored between the parties and both sides of the story can be heard, and very often a forward-looking, creative solution can be forged by agreement.

In patient claims, explanations, reassurances and expressions of regret may be critical to bringing the dispute to closure. These are far more readily achieved in the mediation setting. With an experienced mediator, most mediations reach a resolution within a day.

It is encouraging that many in the NHS in Scotland wish to move in this direction but much more can be done. There is not yet the impetus which has been achieved south of the border through the commitment of organisations such as the National Health Service Litigation Authority and the encouragement of the courts.

The sooner this is achieved in Scotland, the greater the prospect that families and doctors, whose lives are affected by claims, will be spared the prolonged pain of litigation, with its often unsatisfactory outcome for all concerned.

One participant in mediation in Scotland recently reported that it was ‘infinitely preferable’ to the legal process they had been through. ‘To us the real benefit of mediation was that we were totally involved in the process - the exact opposite of what we had experienced in our legal case.’

In the workplace too, and between agencies, independent third party facilitators can bring huge gains as difficult issues are identified and addressed collaboratively.

The outcome can be liberating: ‘What a great feeling it was … following our meeting with the other side, to know that it was finally over. Simple things like not being scared to answer the phone or not dreading looking at the mail are gifts.’

Many more people in the health sector deserve to benefit from such feelings. Who will follow Abe Lincoln’s advice?

John Sturrock QC, one of Scotland’s most experienced mediators, is a director of Core Mediation Limited