Remuneration and a settlement won't always heal the wounds. Danny Lee looks at the reasons why mediation is seen as a more humane and less damaging way to deal with negligence claims

A day in court. An explanation. An apology.

It doesn't sound much, but when Joan Macintosh, 32, settled her action for a botched hysterectomy she felt robbed.

Ms Macintosh had waited two years for a hearing and then three days before the trial date there were frantic phone calls between the lawyers. Offers were followed by counter-offers and that was it. She got nearly£50,000 but she still knows little about why her surgery went wrong or whether the hospital's procedures remain unchanged, leaving others to suffer a similar fate.

This is traditionally how many clinical negligence cases end. Injured patients are left confused and the reputations of clinicians suffer when they are not given the chance to explain their actions. With around 20,000 cases totalling nearly£3bn in value outstanding against the NHS it is becoming ever more important to find a more humane way of dealing with these claims.

Mediation is increasingly seen as a positive alternative.

In June the NHS Litigation Authority asked the 16 firms of solicitors on its panel to begin providing returns on all claims that could be settled by mediation. This project, lasting one year, is designed to find out why there has been such a slow take-up and to encourage alternative dispute resolution.

'We have a duty to patients as well as trusts and clinical staff. We would like doctors to talk to people they have hurt, to explain the reasons for their actions, ' says David Towns, head of communications at the authority. 'This process can be good for both sides.

'We know that litigation is not the most satisfactory way of resolving disputes. It is complicated, time-consuming, expensive and emotionally damaging. There are two other options. One is no-fault liability, which has not been successful and is very expensive because all claims are paid, leaving less for more serious cases.

Mediation is the other possibility. Claimants can try to reach a settlement and an understanding with a trust, rather than attacking it through litigation.'

Support may be forthcoming from the Litigation Authority, but mediation was found not to be particularly popular in a Department of Health study published earlier this year.

1Among other things, it found that the supposed financial savings of mediation did not materialise.

Report author Linda Mulcahy, reader in law at Birkbeck College, London University, explains: 'There has been a poor take-up of mediation because there is a degree of nervousness among solicitors, who have little experience of it. Solicitors are used to negotiating on the phone, not in front of their clients.'

Mr Towns is more cynical.

'Bear in mind that there is nothing in alternative dispute resolution for the lawyer. The longer the process lasts, the more money the lawyer gets.'

When used, however, mediation is clearly successful. Eleven out of the 12 cases in the study were settled and around 80 per cent of all other mediated cases end in a settlement.

Despite these figures, the Clinical Disputes Forum, for example, has only about six mediation cases on its books at the moment.

Frances Swaine, partner in Leigh Day and Co, adds: 'This firm has seven clinical negligence partners, six other assistant solicitors and a large number of para-legal support staff just in London. We still have had only half a dozen mediation cases in the last year, mostly in the past three to four months.' She is in favour of mediation and thinks that after the Litigation Authority initiative more people will opt for that route.

The Centre for Dispute Resolution (CEDR) also argues that mediation's time has come. Its commercial mediation caseload rose by 141 per cent last year and it sees clinical negligence following the trend. But, although it has 600 cases a year, only four this year have been for clinical negligence.

This does not put off Tony Allen, director of alternative dispute resolution services at CEDR. 'Mediation is something that the Woolf reforms encourage and the Legal Services Commission now has powers to insist on it, ' he says.

'The process does save money, despite what the Department of Health study says, ' Mr Allen continues. 'We wouldn't have such a large commercial caseload if that weren't true. Just being able to talk through concerns is very important for claimants and mediation ensures this.'

Why, then, should there be such a poor take-up on a process that offers so much?

Confidentiality is one of the key factors of mediation so knowing exactly how each case progresses is not always easy to determine. There is an overall wariness and some critics argue that an offer to mediate can be seen by the other side as a sign of weakness in your case.

One other, not insignificant, reason is that only for about the last two years has legal aid been available for the process, something that alienated many claimant solicitors early on. Although many now see the benefits, there are still critics.

Ms Swaine points out that 'mediation can be costly and there should be more provision for the Legal Services Commission to underwrite this, so that claimants aren't put off. The Litigation Authority may be able to set aside a pool of money to deal with the process but a claimant will just have the one-off action.

Thousands of pounds of fees, over and above possible court costs, may deter them.'

Others have more fundamental concerns. Geoff Silva, solicitor at Evill and Coleman, argues that 'if a case is a loser, then you won't succeed in court and there is no point in mediation either.

It may be that the complaints procedure is the correct route.

But if a case is a winner, why mediate?'

Mr Silva does not dismiss the process totally, but has serious reservations. 'The disclosures that take place risk undermining your case if litigation proceeds.

Although it is all without prejudice, the other side will still know the strengths and weaknesses of your claim and this puts you on your back foot.'

This anxiety is uncalled for, according to John Pickering, head of the personal injury department at Irwin Mitchell.

'It is wrong to see a risk in the disclosure that goes with mediation, ' he says.

'The litigation protocol is already based on a cards-onthe-table approach and when you attend a mediation there is no need to give away the crown jewels unless you want to.

'There must, though, be equal disclosure from both sides. It is no good if one party treats the process as a fishing expedition for evidence.'

He says that defendant firms have been reluctant to accept his offers to take cases to mediation and his firm has only one case undergoing the process.

'A lot of litigators take the view that they can mediate on their own, without mediation, ' he says.

'This is based on ignorance.

Mediation should be seen as part of the armoury that ought to be considered.'

This country's relatively recent flirtations with alternative dispute resolution are not unique. Other jurisdictions have far closer relations with mediation.

Most states in the US have mediation as compulsory before allowing access to the court system. The Supreme Court in New South Wales, Australia, can order mediation against the wishes of the parties.

This suggests the procedure has much to recommend it, says Tom Hayes, a solicitor with Capsticks.

But he warns: 'I do not believe that all clinical negligence cases are appropriate for mediation.' In assessing if a clinical negligence case is suitable for mediation he says it is important to consider if it is a claim where an official apology, empathy or sympathy may be required as part of settlement, whether settlement negotiations have been exhausted, and whether mediation can be cost effective, taking into account the value of the claim.

In a way mediation is a victim of its own success.

There are few formal mediations because the spirit of the process has permeated through the litigation process.

With the Woolf reforms and pre-action protocol emphasis on co-operation, many parties are getting around tables to settle their differences without the need for formal, and often expensive (between£3,000 and£5,000) mediation.

This cannot be underestimated, says Jane Chapman, trustee of the Association of Litigation and Risk Managers and general manager for risk and legal services at North West London Hospitals trust. 'The offer to mediate can be a catalyst for settlement, ' she explains. 'Mediation techniques are also often used in general negotiations. The pre-action protocol emphasises the co-operation that is part of mediation.'

Early settlements are clearly a positive development, but without mediation they may still fail to reintroduce the human element. Talk can be dominated by money and very little else.

This is an attitude that Gillian Jacomb, claims manager at Harrogate trust, understands.

'We live in a society that increasingly sees everything in terms of cash value, ' she says. 'Many claimants want to see a trust's remorse in pound notes but this is often not the best solution. Resolving complaints sitting round a table is so much better than through ugly solicitors' letters or court proceedings'.

Each party meeting has a critical emotional effect, emphasises Shane Sayers, a partner at Kennedys.

'Many of the pilot studies found that the key to settling cases was leaving the surgeon and claimant alone for a few minutes, ' he says.

'Patients then understood that a clinical judgement had been made and humanity was injected back into the sterile world of litigation.

'Mediation uniquely shows areas of potential agreement that might otherwise not be discovered.

'It may be that what really upsets a husband widowed by surgery on his wife is that he knows the hospital continues with the same procedure. By talking, he may understand why the death occurred and the reasons for the surgeon's decisions.'

The process can move a claimant from wanting vengeance to simply wanting reasonable redress, such as an apology.

How then can mediation be put to more widespread practical use? Is compulsion, such as in other jurisdictions, the answer?

Not according to most experts, who argue that this would undermine the consensual element, which commits parties to making the compromises necessary for mediation to work.

Frances Swaine highlights a third way. 'There should be a presumption in favour of it and parties should be required to give good reasons why they do not want it.

'Good views on mediation are likely to spread when more people have achieved results through it that are satisfactory to all.'

Experience, education and training are seen as the keys to widening interest. Susan Polywka, chair of the Clinical Disputes Forum mediation project outlines its proposed approach.

'Defendant and claimant solicitors are the gatekeepers.

They must be the starting point for education.

'We hope the multidisciplinary and cross-section nature of the project can break through resistance.

Sometimes the desire by solicitors on both sides to protect their clients' rights hides what the parties want.

We need to break through that and find out what it is the parties want.'

The forum will be focusing on the top firms in the clinical negligence field to get the message across. But Ms Polywka warns that there is a danger in seeing mediation as a panacea.

'Nevertheless, far more than half a dozen of the thousands of current clinical negligence cases must be candidates for the process, ' she says. Joan Macintosh would surely agree.