Professional Negligence Mediation

Professional negligence claims

People, businesses, and organisations rely on and trust professionals every hour of the day. Professionals are sought for their expertise, training, knowledge, and qualifications to help them build, demolish, repair, treat, heal, acquire, sell, defend, prosecute, or otherwise represent their interests, because they do not have the ability to deal with it themselves. When things go wrong, parties can be left feeling let down, not provided with the right type of service or advice or having some type of financial loss, put to greater expense and suffered loss due to pain or suffering.

In recent years professional negligence claims have increased, as clients are increasingly aware of their legal rights and how to exercise them.

Professional negligence claims can be very costly in terms of time, emotional energy, stress, potential loss of reputation, ability to continue in the profession, and money required to deal with these types of claims. They may take years to resolve, costing many tens of thousands of pounds in litigation costs, lost working time, involving many experts, expensive expert reports, loss of confidentiality as private details will have to be disclosed to third parties, the Court and maybe reported in the press, on the internet and professional journals.

What is professional negligence?

Professional negligence occurs when a professional fails to perform their responsibilities to the required standard or breaches a duty of care, which results in a financial loss, physical damage or injury of their client or customer.

A professional negligence claim can be made against anyone considered to have expertise in the services they provide. This includes the old professions of Surgeon, Doctor, Dentist, Nurse, Pharmacist, Veterinary, Psychiatrist, Lawyer, Accountant, Banking and Finance, Architect, Engineer, Surveyor and many new professions and trades.

A claim may be based on one or more of the following areas:

  • Breach of duty of care
  • Breach of a contractual term
  • Breach of fiduciary duty
  • Breach of statutory duty

For a claim to be successful, there must be evidence that the service provided fell below their professional standards and regulations. That this failure, negatively impacted the client.

Mediation of professional negligence claims

It cannot be underestimated that one of the most useful features of mediation and alternative dispute resolution, is the ability to stop complaints escalating and getting out of hand. The quicker and earlier that you start engaging with the complainant the better.

By contacting Alexander Christian Mediation at the start of a complaint, we can assist both parties to come to a mutually acceptable resolution. It is important to understand that all mediation is private and confidential. This can prevent damage to a business brand and professional reputation. It is also assists the complainant in providing an effective, quick resolution to the matter.

Pre-action protocol for professional negligence

The Civil Procedure Rules require parties to explore mediation and other forms of Alternative Dispute Resolution (ADR) before court litigation. Paragraph 12 of the Pre-action Protocol states:

"12.1 Court proceedings should be a last resort. The parties should consider whether some form of alternative dispute resolution procedure might enable them to settle their dispute without commencing court proceedings, and if so, endeavour to agree which form to adopt."

Proposed extension of Fixed Recoverable Costs

In October 2023, it is proposed that fixed recoverable costs will be extended to most claims of £100,000 or less.

It has been anticipated that within 5 years, fixed costs will be applicable to claims valued at £250,000.

Limiting recoverable costs from a losing party might make it unpalatable for parties to litigate as this potentially will have to fund the shortfall of their solicitors costs.

Mediation might therefore offer a cost effective method of dispute resolution.

Resolving a complaint when stalement has occurred

When communication has broken down. Reputation and service have been called into question. Alexander Christian Mediation can help both parties to come to a mutually acceptable agreement, before a compliant is made public. Mediation can help to stop damage happening to a business's reputation on review sites, social media platforms, trading standards investigations and with professional and trade bodies.

Benefits of mediation through learning

A hidden benefit of mediation is that mediation allows you to learn from past events. Both parties in mediation are allowed to speak freely about their dispute and to express their concerns and frustrations. This can be very enlightening, helping to build customer relationship procedures that can help reduce the chance of other disputes arising and help parties understand each other perspectives.

What do mediators do?

Mediators help parties in a dispute to communicate about the issues of concern to them and help participants to negotiate and find solutions that are acceptable to everyone involved. At the end of the mediation process, it is hoped the parties can come to a mutually agreed solution. Mediators are neutral and have no interest in the outcome of the dispute and cannot impose an outcome on the parties, unlike a Judge at court.

Mediators will help you to manage your emotions and communicate with the other party. The mediator will help you to make your points calmly, clearly, listen to the other side without interrupting and getting angry. The mediator will help you identify what is important, what is problematic, and what solutions can be explored and agreed. The Mediator will help you if your finding the process stressful.

Do mediators provide legal advice?

Mediators do not give legal advice. The mediator will not suggest possible solutions or advise you on whether any proposed solution is in your interests or not. The mediator will remain completely impartial.

What are the benefits of mediation?

Mediation is quicker than litigation

Generally, mediation is much quicker than the traditional court route. You book an appointment with a mediator and mediation can take place. With the court route you might have to wait many months for a court hearing date which may be cancelled at short notice, even on the day. This can result in many months of delays, whilst you wait on a new hearing date that all parties can attend. If a court hearing is cancelled, you will be charged a deemed fee by the barrister, and a further fee for any future hearing.

Disputes can drag on for a long time before getting to Court. While the dispute rumbles on towards a hearing, you will be expected to commit a huge amount of time, energy, and money to maintain your legal position and prepare for the hearing. So, mediating early can save you huge sums of money.

Mediation is cheaper and quicker.

Mediation has a very high success rate

Mediation has a very high success rate. Why is this important? For a small business, 'time is money'. Anything that takes you away from running your business is costing you money. For individuals early resolution, can result in the party moving on with their lives.

To avoid court

Mediation gives parties to a dispute an alternative to the traditional expensive and risky route of litigation. Parties enter into negotiations to find an agreement. Anything can be tried/ offered to make a deal or withdrawn if it is not acceptable without endangering a party's formal position.

Why Mediate instead of going to court?

When in mediation, you are in control of the process, and you can reach an agreement based on the interests of the parties. When you go to court to resolve an issue, the Judge will make a judgement based on the law, and the interests of each party may not be considered.

Mediation allows you to stay in control. You have greater control over the decisions you make, unlike the court route, where a Judge decides for you. In mediation you can decide how you want to resolve the dispute. You do not have to accept a proposal if you are not happy with it.

Mediation can help to maintain relationships. Going through Court is very polarising and will put pressure on relationships. Mediation focuses on communication and finding solutions that work for everyone.

Disputes can be resolved by considering the parties interests rather than legal rights.

The mediation process:

  • is confidential.
  • no mediation notes are retained.
  • offers are without prejudice.
  • the outcome is private, unless parties agree otherwise and/or other parties need to be informed so that payments/ actions can be taken such as orders being drawn up.

Parties are not committed to a negotiated deal until a written agreement is drawn up by the parties, and signed by both parties.

Where the Courts feel mediation should been considered and one party unreasonably refuses. The Court might bear this in mind when making a judgment, in relation to costs.

Professional negligence disputes are generally about getting some financial compensation. That said, it is better to negotiate, as this is exactly what your solicitor and barrister will try to do for you. Trying to settle your matter out of Court is in your interest, as it will save you considerable sums of money on letters, telephone calls, meetings, applications, the production of court bundles and instructing a barrister who will represent you in the Court.

Mediation is a very successful method of resolving disputes and offers a cheaper route to justice than the court system.

The litigation route always carries a risk. This may include a Judge that is 'not with you' in the hearing. The Judge may not be interested in the merits of the argument and instead adopts a pragmatic and subjective approach to the case. The Judge could decide the case on grounds that have not even be pleaded by your barrister - Ali v Dinc (2022).

Ali v Dinc (2022)

Reduced risk of reputation damage

Mediation can help to reduce the risks of reputation damage. Court litigation and news media coverage can have adverse consequences for your reputation. Regardless of whether you win or lose. However, mediation is private and confidential. It cannot be reported in the press or social media.

Mediation can help you deal with larger organisations

Mediation can help you deal with larger more powerful organisation. Mediation can help to level the playing field.

Mediation preserves relationships

Mediation, enables both sides to be heard, both parties work together to resolve their problems on a voluntary basis. This helps the parties to preserve their relationship.

Is there a right time to mediate?

There is not a wrong time to mediate. Mediation can take place at any time before your case reaches a final hearing.

The best time to mediate is as soon as you can . This will help reduce the amount of time and money spent on the dispute. Before the parties become entrenched in their legal positions and before large sums have been spent on legal expenses.

How long does mediation take?

Both sides may come to an agreement in a couple of hours, or it might take more than a couple of sessions. Most civil mediation meetings are concluded in a day.

What happens in a dispute mediation?

The mediator will allow the parties to speak freely about their concerns about their dispute. The parties will be able to talk about their problems and concerns. The mediator will help the parties to communicate and understand the other side's point of view.

During the course of the day, the dispute mediation process will provide you with the best possible chance of negotiating a mutually agreed solution. Once agreed, your lawyers will draft the agreement, an once signed it will be binding. The mediator is not involved in the drafting of this agreement. This is to ensure complete impartiality.

Do I have to be in the same room as the person I am in mediation with?

You do not have to be in the same room as the other party you are in dispute with. The Mediator will use private rooms to help you resolve your disagreement without direct contact.

Usually, the parties book three rooms. The larger room, both parties usually attend to state their opening statements. Thereafter parties are in smaller separate rooms. If settlement is achieved both parties will attend the larger room for them or their lawyers to draft the agreement.

Who drafts the agreement?

When a settlement is reached. The settlement agreement must be recorded in writing in the agreed terms by the parties themselves or their solicitors. The mediator will play no part in the writing of the settlement agreement or signing of the agreement.

Who signs the agreement?

The settlement agreement must be signed by all the parties and their lawyers, and must state the agreed outcome of the mediation.

What is in the agreement?

The settlement agreement must state the agreed outcome of the mediation. Where legal documents may be required to be drawn up at a later date. It should be clearly stated in the agreement. The settlement agreement will need to clearly mention if  legal documents - draft order, contract, undertaking or other document will need to be drawn up at a later date.

Are mediation agreements legally binding?

In civil and commercial mediation any written agreement is legally binding.

What happens if there is no agreement?

You might have made good progress in the mediation, but you did quite reach a settlement. In this situation it can be helpful to take a break to think things over, then resume mediation in a couple of days.

Who pays for mediation?

Who pays for mediation will depend on the type of dispute. Generally both sides pay an equal share of the mediation fee, room /venue costs, refreshment costs, mediators travels and accomodation costs.

Under Civil Procedure Rules (Pre-Action Protocol), the Courts require parties to have actively engaged in other forms of dispute resolution before preceeding to to issue Court Proceedings. Penalties can be imposed if they win or lose at Court.

When is dispute mediation unsuitable?

There are some circumstances when mediation from the outset may not be suitable.

There are:

  • One of both of the parties are not willing to mediate/ negotiate.
  • The dispute may not be capable of being negotiated.
  • There may be extreme conflict and an imbalance of power that the mediator cannot redress.
  • One or both parties feel forced to attend.
  • Mediation has already been fully attempted.
  • When a point of law needs to be decided on by a Court.
  • Where injunctive relief is needed to protect one party.
  • Where either party displays a lack of commitment.
  • Where either party is unable to accept the situation or is unable to negotiate.
  • A party is simply not ready to let go of their position.

Are mediators regulated?

There is no statutory regulation requiring mediators to be regulated. The Civil Mediation Council (CMC) runs a voluntary system of regulation for Civil and Commercial and Workplace mediators. Mediators registered with the CMC abide by a Code of Conduct having been trained to an acceptable industry standard, have suitable insurance, carry out continuing training and development, and offer a complaints process.

Useful information:

The Mediation ProcessAdvantages and Disadvantages of Mediation

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