Thoughts on Mediation of Personal Injury and Clinical Negligence Claims: Is the US Experience Instructive for the UK?
The vast majority of personal injury (PN) and, to a lesser extent, clinical negligence (CN) cases in America go to pre-trial mediation. In England and Wales (UK), the use of mediation early in the litigation cycle is increasing in most areas of civil litigation. Yet, mediation, whether early, on the eve of trial or some time in between, is still not the norm in the UK to resolve those PI and CN cases valued in excess of £25,000. Are there conditions in the US that make these more suitable for mediation than similar cases in the UK? Should mediation be used more routinely in these cases? Further, will recommendations in the just-released Review of Civil Litigation Costs: Final Report (“Jackson Report”), if implemented, increase the use of mediation in these categories of cases in the UK?
1. Mediating PI and CN claims in the United States—a bit of history
Long before mediation established itself in America as an accepted form of alternative dispute resolution, the judicial systems in most state and federal courts required that all personal injury cases go to a Mandatory Settlement Conference (MSC) before commencing trial. MSCs were presided over by sitting judges, though usually someone other than the trial judge. Although different in format to mediation, MSCs had the same goal: to encourage settlement and minimize the strain on limited judicial resources. They were time-limited and largely evaluative, often ending without a settlement and with the parties’ positions more firmly rooted than before.
Mediation as we know it now first emerged in the late 1970’s in Orange County, California when a group of retired judges with substantial experience conducting MSCs founded JAMS (formerly Judicial Arbitration and Mediation Services).
As mediation sought its place in the litigation tool kit, it did so amongst lawyers and claims adjusters who had a long history and comfort level with settlement conferences. While requiring some market adjustments, the basic concept of meeting in an effort to resolve a case without trial was a very familiar one.