Claims mediation

Supporting claimants, patients, their families and the NHS to resolve disputes fairly

Advise / Resolve / Learn

Guidance for healthcare professionals and NHS staff

Who are NHS Resolution?

NHS Resolution is an arm’s length body of the Department of Health and Social Care. We provide expertise to the NHS on resolving concerns and disputes fairly, sharing learning for improvement and preserving resources for patient care. Our Claims Management (Claims) service operates in a similar way to an insurer by providing indemnity cover to our scheme members and beneficiaries (NHS Trusts and GP practices) in England and we are focused upon the delivery of fair, efficient and costs effective resolution of compensation claims.

We support mediation as a means of resolving disputes fairly.

What is mediation?

Mediation is an independent, voluntary and confidential process in which a trained neutral mediator helps the parties to resolve their dispute or narrow the issues between them. The mediator’s role is not to take sides but he or she will often help to test the strength of each side’s position in private and explore solutions. The issues discussed at mediation remain entirely confidential. If either party is unhappy with the outcome, the case can still proceed to court. However, matters discussed within a mediation cannot be discussed in court.

Our Claims mediation service is designed to support claimants, patients, families and NHS staff in working together towards the resolution of incidents, legal claims and costs disputes and to avoid the need, expense, and potential emotional stress of the prolonged legal process and/ or formal court proceedings for all parties. The service provides access to independent and accredited mediators, selected from a panel with a wide variety of professional backgrounds and experiences.

A dedicated NHS Resolution Safety and Learning lead can also provide support to the mediation process and can attend the mediation (if required), by helping claimants understand what went wrong, support the NHS healthcare provider and assist with identifying clinical learning, influencing improvements to patient safety (sometimes on a national scale) and facilitating meaningful apologies.

Who attends mediation?

  • The mediator: an independent and experienced person with accreditation in mediation skills. 
  • The claimant: the patient, a family member or an individual with legal responsibility for the person harmed.
  • Lawyers: a solicitor for each side is usually present although, some parties choose not to have a lawyer present and there is no obligation for the claimant to have legal representation at mediation.
  • The NHS Healthcare provider: scheme members/beneficiaries (NHS Trust or GP practice), which may be a senior clinician (medical director; GP; director of nursing; director/head of midwifery or governance lead; or the clinicians involved in the claim) and/or legal services manager.
  • NHS Resolution: the claims handler who is responsible for managing the claim and/or sometimes a Safety and Learning lead.

Experience and insight

The identity of the listeners is important. There is a big difference between a claimant talking to lawyers and a claimant talking to the Trust and NHS Resolution. Receiving a response and or an acknowledgement helps facilitate settlement of the claim because the claimant feels they have been heard
Mediator

Benefits of mediation

  • Confidential, voluntary and non-adversarial.
  • Can be arranged quickly.
  • Flexible to the needs of all parties and can be reasonably informal.
  • Can avoid prolonged legal process and/ or formal court proceedings and the associated anxiety of such an experience.
  • Creates a safe space for open discussion, including:
    • giving the claimant the opportunity to explain how the incident has affected them and their family and the impact it has had on their lives;
    • enabling NHS organisations to provide an explanation of what happened, how the harm occurred, describe improvements to services and deliver meaningful apologies;
    • helping the patient and their family to understand why things happened to them; and
    • assisting legal representatives to set out their issues to be resolved.
  • Facilitates clinical support for organisations through the identification of learning and sharing of good practices to help prevent reoccurrence.
  • Assist in rebuilding trust through constructive dialogue
  • Enables reflection.

Experience and insight

A Trust should pick the right person to attend with the right mind set – someone who has authenticity, who knows the case and who is prepared to make an emotional connection with the patient and their family.
Senior medical clinician

Why have I been invited to attend?

  • If you have been asked to attend the mediation because you are a clinician or manager it may be because your attendance will be invaluable to describe what lessons have been learned and the resultant changes that have been made to improve safety.
  • Around 75% of mediated cases are settled on the day of mediation or within 28 days. We have collected evidence which shows that cases are more likely to settle on the day of mediation when a clinician attends the mediation. and stressful court proceedings may be avoided.
  • Sometimes there is a breakdown in communication between organisations and patients/ families and/or a mediation would provide an opportunity to explain the clinical care they/their family member received to help them understand their experience. It is for this reason NHS Resolution actively encourage clinicians and NHS staff to attend mediations.
  • Mediation can address matters other than financial compensation, it is often used as a method of overcoming legal positions or a breakdown in the relationship/communication between a claimant or family and the healthcare provider/clinicians. This is more readily achieved by a relevant clinician or senior representative attending to explain the incident, what went wrong, what has been learned to mitigate future risk and to offer an apology. It also shows a patient[or family] that the Trust are prepared to listen, learn and are taking their complaint/claim seriously.
  • Broadly, we would not encourage the clinicians directly involved in the incident to participate in the mediation as this can be upsetting for the patient [or family] and the healthcare professional, unless it is specifically requested by the patient [or family], and there is agreement from the healthcare professional concerned.
  • If the treating clinician does attend the mediation, it may be considered cathartic for both the clinician and the patient [or family], and it offers the opportunity for reconciliation.

Outcome by professional healthcare attendance

Cases are more likely to settle on the day of mediation when a clinician attends the mediation. The below data is for 584 mediations conducted between 5 December 2016 to 31 March 2019.

Will I be paid for attending?

  • You will not be paid a fee for attending the mediation.

Preparing for a mediation

  • Mediation is typically undertaken face to face in an agreed venue, but digital platforms, such as Microsoft Teams and Zoom can be used to enable your attendance. This means you can attend any agreed plenary session and leave the mediation to return to your duties. 
  • If you have been asked to attend a mediation it is important to be prepared and to discuss your role with the solicitor representing you or the NHS organisation.
  • You will be supported by your organisation’s legal services manager (if applicable), the solicitor representing you or your organisation (from one of our panel of solicitor firms), an NHS Resolution claim manager and/or the Safety and Learning lead (if involved in the mediation).
  • It is preferable, particularly where we are making admissions of liability, that you have a conversation with the Safety and Learning lead at NHS Resolution prior to the mediation to discuss the learning. We will also be able to offer you some additional advice and support if you require it, such as sharing good practices. 

Experience and insight

A meaningful apology to the claimant, for a patient’s experience, cannot be underestimated and it is important we demonstrate empathy and compassion to them and their families. This often sets a positive tone for the mediation.
Safety and Learning Lead

What to expect

  • A confidentially agreement is signed by all parties present – this is normally signed before the mediation.
  • There is not a set format for a mediation it will depend on the case and the issues the parties wish to discuss.
  • Each party has its own room for private discussion (either in person or virtually).
  • The patient [or family] and defence teams each meet privately with the mediator intermittently throughout the day.
  • There may be a plenary session where all parties are brought together for introductions – this is where explanations of clinical care/ learning and apologies can be given. Often the claimant reads an impact statement. This can be emotional to listen to, but it is an important part of the mediation for the patient / family to feel heard and for those attending from the organization/practice to show empathy.
  • If you are asked to join a plenary session, it is important to be open when providing information regarding care, learning and quality improvements – if you do not know an answer to question say you don’t know, but you will find the answer and get back to them.
  • The mediator will explore the case and go back and forth between the parties in order to help and support them to consider each other’s legal position and / or reach a financial agreement.
  • If a settlement is achieved, a written, binding agreement is drawn up and signed by both parties. Where a claimant is a minor or is a person who does not have capacity, the settlement will not be binding without court approval. This does not mean that you will be required to attend court.
  • Even if agreement is not reached on the day, the claim may settle shortly afterwards once there has been time to reflect upon what has been heard.
  • The Safety and Learning Lead (if present) will explain their role, the resources we create and publish on our website, and/or discuss national level learning, improvements or national campaigns relevant to the harm caused in that case. 

After the mediation

  • If the case is settled at the mediation, any questions raised on the day that could not be answered should be followed up and updates may be provided as appropriate.
  • If the claim is not settled at the mediation the claim will continue and the GP or the trust, will be kept informed regarding the progress of the claim.

A mediation can have a significant impact upon those that attend. It is important to seek support and guidance from your organisation’s legal representatives, clinical supervisor, union representative or from the organisations signposted below.


Sources of information, advice and support:

NHS Resolution

NHS Resolution use the services of two accredited mediation companies:

  • CEDR - Centre for Effective Dispute Resolution
  • Trust Mediation - Specialist personal injury and medical negligence mediation

Duty of Candour:

CQC Regulation 20

AvMA duty of Candour leaflet

NHS Practitioner Health Programme:

A free and confidential service based in London for doctors and dentists with issues relating to mental health conditions or addiction problems, in particular where these might affect their work.

Practitioner Health

General Data Protection Regulations (2018):

Guidance on personal data regulations: https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/data-protection-principles/a-guide-to-the-data-protection-principles/

NHS Health Education England Learner Health and Wellbeing:

Collated links to practical resources to provide trainees and learners with information and tools to improve their own health and wellbeing.

Learner health and wellbeing | Health Education England (hee.nhs.uk)

NHS Staff Support line:

A comprehensive overview of free wellbeing resources, offers and toolkits for all NHS staff. Trained professionals give support and advice on a variety of health and wellbeing needs, including: bereavement care; physical and mental health; coaching; and financial help.

“This service is available to all our NHS colleagues who have had a tough day, who are feeling worried or overwhelmed, or who have a lot on their mind and need to talk it through.”

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