Mediation

The costs of litigation for both participants in respect of time, legal costs, compensation, stress, lost productivity, inconvenience and duty of care can often far outweigh any result achieved. With associated media interest, a dispute can escalate into a severe organisational risk.

Collis Mediation Ltd works with all stakeholders of public sector organisations from the public themselves to contractors, suppliers and employees.

Collis Mediation Ltd is proud to have Jonathan Dingle FRSA as their head of Public Sector mediation, specialising in clinical negligence, personal injury, workplace and commercial mediation who works along side other Public sectior specialists. Please click on Jonathan's name above to view his outstanding resume.

Jonathan is a leading trainer for the NHS, a specialist in Clinical Negligence and ensures our mediators are consistently trained and qualified in this specialist and ever changing area of mediation, which in turn gives our clients the confidence and security that even the most complex public sector disputes are mediated to the very highest standards possible.

This matter is tragic.  It arose from an otherwise excellent specialist children’s hospital in a major city to identify that the 12-year-old boy was at risk from a seizure. The child was brought to the Accident and Emergency Department at a relatively quiet time. His particular condition was documented in his records and not unusual for a person of that ethnic background. By a combination of unfortunate errors, and despite (it was insisted) an articulate and demanding father pressing for action, the child was passed between inexperience triage staff who failed to note the risk and the G.P.  who worked in Department. The parent was re-assured and told to take the child home, and consult his own G.P. if the symptoms persisted in 48 hours. No consultant or specialist was engaged.  The child had a seizure that evening at home, within five hours of being sent away, and died waiting for the ambulance.

Liability was not initially admitted. The parents represented themselves because no solicitor would take it on given the relatively low value and the refusal of the father to pay a success fee. Various failures, that came to be accepted, in the way the Trust dealt with the case before and after the Inquest, including in the release of information to the family, became major issues for the parents. Liability was accepted by the Trust after panel solicitors were instructed.

Various offers were made but the father felt they were inappropriate. The father was invited to mediation and agreed to meet with the mediator but indicated that it would be a waste of time.  In fact, following a long morning of sensitive discussions, the father and the rest of the family agreed to engage. A full meeting was held, for the first time, with the relevant consultants, risk manager and solicitors for the Trust. The MDU were also engaged representing a G.P. who had been criticised by the Coroner. 

In the course of some eight hours, the MDU and the Trust agreed a joint approach and then, engaging with the family through the mediator and in a series of moderated open sessions, a framework for settlement was agreed. This framework would have been wholly unavailable at Court.  The family agreed to sleep on the matter and, after a period of letter writing whilst the mediation formally stood adjourned, the Trust’s solicitors later confirmed that the resolution package had been agreed and the mediation was closed.

Unusually, this pre-LASPO matter did not involve a nurse but a “civilian” employee at a Northern Hospital. The individual concerned had just come to work and was required in the course of their employment, as the pleading went, to enter a boiler room and there check a header tank. 

The individual had performed the task many times and it involved wading in boots through a small pool of water to reach the header tank. In doing so, the employee's foot entered an unguarded hole and he fractured his ankle. Worse, the employee reported a fear of being drowned and PTSD.

Primary Liability was admitted subject to causation but a high degree (at one stage 100%!) of conneg was alleged.  Quantum was in dispute and it was suggested that the individual would have suffered similar changes in the ankle without the fracture  

The matter went to mediation encouraged by an ADR friendly judge. It took just over two hours to settle at mediation on “sensible terms” having regard to all the risks: this was assisted, it was said, by the intelligent reality testing of both the claimant and these representing the Trust in the private sessions. It was estimated that some £35,000 in base costs was saved, about the same sum by which the claim was also reduced.  

The parties had declined to meet without a mediator, or at least the claimant had, because of perceived animosity.  After the mediation the relevant representatives, noticing it was lunchtime, adjourned together for sustenance.  

This matter was dealt with internally - the mediator met, at the instigation of the clinical director and PALS, with the family of a child who was allegedly the subject of a sub-optimal outcome, and the risk manager and relevant consultant of a western Trust.

The matter was complex. The family were minded to call in solicitor but decided to defer doing so until after the mediation took place. The mediator had to be sensitive to this and acute as to dealing with any questions of legal advice.  In the end, during the course of two difficult hours in mediation, the family were satisfied (properly in the view of the very experienced mediator) that what had taken place was simply and accident.  They were not, in fact after compensation, just an apology and an assurance that this “mistake” could not, so far as possible be averted.

Proper assurances were given and the intelligent family departed, satisfied and impressed by the candour and support that they were then given.  They wrote a pleasant letter to the mediator.  The Trust was also delighted by the outcome which eased consultant and management time.  

This dispute involved a Polish national who visited an NHS dentist complaining of sensitivity in a lower left molar. The Dentist advised treatment by way of root canal which he advised would take around 2 months to complete.  Initial pre-root canal treatment was performed, a sealant applied and the Claimant was told to come back in one month for completion of his treatment.

The Claimant then travelled to Poland for one month vacation during which he complained of increasing pain and discomfort. The Claimant returned to the dentist who removed the sealant, clean the molar and resealed. The pain and discomfort increased and the Claimant visited an out of hours GP who prescribed antibiotics. The Claimant's condition deteriorated and he attended the accident and emergency department of his local hospital. At hospital he was diagnosed with an abscess and sepsis and was immediately admitted for emergency treatment.  Surgical invention was required including cutting into the jaw line and cheek to release the infection and to remove the abscess. Two lower right molars were removed. The Claimant stayed in hospital for 2 days. He suffered from nerve damage in addition to the loss of teeth which is was agreed he would not have lost had the infection been treated early.

Breach of duty and partial liability was admitted, however, causation and quantum were disputed.  Both parties attended the mediation with solicitors and Counsel.  Four hours were allocated to the mediation. The parties initially approached the mediation with an emotionally based assessment of causation and quantum. It became clear there had been a last minute change of Counsel one side who held a different opinion to previously instructed Counsel and felt uncomfortable proceeding with a view they did not support.

There were difficulties in respect of indemnity under an insurance policy. The mediation took place one month before the trial. The mediation opened in open session and then moved between private and open sessions. There was a lack of focus on what each party wanted to achieve from the process with the first three hours of the mediation spent on posturing and advancing the initial legal positions as opposed to interests.

With facilitation the participants took a step back from the dispute and applied reason to the approach they had previously taken.  The participants quickly settled into options for resolution that they would not have the opportunity of considering through litigation. The participants reached a resolution they both found fair and reasonable in the last 8 minutes of the mediation.

Legal costs arising from a dental negligence claim. The Claimant had originally brought a claim against an orthodontist for negligent removal of an upper right crown which in turn fractured the post and root and led to the eventual loss of the tooth. The loss of tooth resulted in a lost opportunity to apply a bridge support for a denture in the upper right 6/7 area.

Liability, causation and quantum disputed. The most significant areas of dispute centred on causation of a psychiatric injury and whether the crown/tooth in that area would have been lost in any event. The claim was eventually settled by way of CPR r.36 offer. The costs claimed equated to 14 times the damages settlement. There were numerous issues including the cost of a post-Jackson ATE premium claimed for liability and causation evidence which was claimed at almost the same amount as the settlement negotiated for damages.

At mediation it quickly transpired there were issues as to insurance funding, potential conflicts of interest between one party, their solicitor and insurer.  There was an issue as to whether insurance funding would be withdrawn. A further complication arose with a lien and claim for costs of a formerly instructed solicitor. The claimant attended the costs mediation with a solicitor and an insurer on the telephone. The claimant had a personal financial interest in the settlement of costs given that they had a personal liability for any shortfall in costs.

The defendant also attended together with a solicitor and Counsel. The mediation was scheduled to take 4 hours but the parties agreed, in advance, to go into a further 4 hour session if a resolution was not reached in the first part.  Fortunately the parties were able to reach a resolution within 3 hours of the mediation.