Lawyers in row over mediation

Tom Osborne, a partner in solicitors Osborne Morris and Morgan, claimed that the NHS Litigation Authority had refused to pass a sufficient number of cases to the project to make it viable.

But the authority said it thought mediation was a good idea and blamed the solicitors' instinct to take strong cases to court for the problem.

Only 12 mediation cases were channelled into the Department of Health's pilot project, launched in 1995 in Anglia and Oxford and Northern and Yorkshire regions.

Researchers, led by Birkbeck College reader in law Linda Mulcahy, had expected 40 cases and were forced to extend the two-year project for a further year to increase the numbers.

Ms Mulcahy admitted that evidence from the files of 44 potential cases put to the litigation authority for consideration suggested that the NHS's lawyers were against mediation.

'They see the financial settlement as the most important thing to achieve. The quality aspect is not as relevant to them, ' she said.

Mr Osborne has successfully brought a number of medical negligence cases against the NHS, including that of Karen Beatham, who won£1.6m last year for brain damage suffered when she was left unattended by hospital staff during an asthma attack.

He says he could have mediated at least three or four cases over the past year, but the NHS refused.

'The NHS would have probably paid out£5m less. The trouble is, they think that we wanted to go to mediation because we thought we were going to lose a court case.'

In the pilot, representatives from both sides went to a neutral location and talked the case through with the help of a trained mediator. This sometimes resulted in a written apology and an agreed financial settlement.

Ms Mulcahy said: 'People are dissatisfied with the current system. It would be really good if the Department of Health didn't just leave this report on the shelf.'

Litigation authority spokesman David Towns denied it was against mediation but admitted: 'Lawyers say, if you think you are going to win, why mediate?'

Mediating Medical Negligence Claims: an option for the future.

www.doh.gov.uk

Main findings from the research

Most patients felt that the NHS failed to investigate their claims adequately, listen objectively or explore issues.

Most wanted to make sure steps were taken to prevent a similar mistake again, not win huge settlements.

Mediation gave them their say and an explanation.

Mediated claims were settled for between£5,000 and£80,000 and often included written apologies or extensive explanations.

Claimants were represented by solicitors in 10 of the 12 cases.

Trusts or health authorities always had legal representatives.

Many people felt that the NHS Executive and NHS Litigation Authority had not encouraged mediation.

The Legal Aid Board initially refused to fund the time spent by solicitors at the mediation day, but later relented.