The Role Of Mediation In Personal Injury And Clinical Negligence Claims

mariam-abu-hussein
Mariam Abu HusseinLegal Assessment Specialist @ Lawhive
Updated on 21st December 2023

When you’re in an accident that’s not your fault and you get hurt, it’s a lot to handle. Many individuals naturally want justice for the pain, inconvenience, and financial losses they experience. That’s where personal injury and medical negligence claims come in, and there are various incidents where you might be eligible for compensation. 

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If this is your first time dealing with the legal process, you might be unsure of what to expect. People often picture courtrooms and judges, but the reality of personal injury claims is different. Most compensation claims can be settled without going to court, often through negotiation and mediation. 

In this article, we’ll explain how mediation works in personal injury and medical negligence claims.

What is mediation?

Mediation offers an alternative to going to court to settle your compensation claim. During this process, you and your lawyers negotiate with the lawyers and insurers of the person or business responsible for your injuries, with the help of a skilled mediator. 

Unlike a judge, the mediator doesn’t decide who is right or wrong. It’s not their job to pass judgment. Instead, they work with all parties involved to help negotiate a settlement.

If and when everyone agrees to a settlement it is written up as a binding agreement and your claim is settled. No matter what, you have control over the final decision. Even if you agree to mediation, if you don’t agree, there’s no deal. 

What are the benefits of mediation in personal injury cases? 

Mediation benefits claimants in personal injury cases because it takes away the potential stress of the claim and any worries about going to court.

Mediation can also save a lot of time that would be spent preparing for trial, remove uncertainty about the outcome, save on legal costs, and (in some cases) secure compensation quicker than a lengthy legal battle through the courts.

How can a mediator help with compensation negotiations? 

Emotions can run high in personal injury claims, particularly if the alleged negligence has resulted in death or significant, life-changing injury.

A mediator can be helpful in negotiations about compensation for personal injuries if negotiations have hit a bump in the road or reached a deadlock. Even though an experienced personal injury solicitor can help a lot, they’re still in your corner and acting in your best interests. Having someone neutral, who doesn’t take sides, can make discussions more productive and help you find a fair solution. 

Who attends mediation for personal injury cases? 

In mediation for personal injury and medical negligence cases, it’s typically you and your solicitor who attend, along with the mediator. You can also bring someone for support, like a partner or friend, but you don’t have to. 

Unlike a trial, there’s no need for numerous witnesses and experts to be present. Rather than a formal courtroom setting, discussions focus on the claimant in a more relaxed setting.

What are the rules of mediation for personal injury claims?

Mediation is so effective because there are rules that must be followed to create a safe and confidential environment for open communication. The key rules of mediation are: 

  • Everything discussed is confidential - nothing is shared with the other side without your consent; 

  • Information shared in mediation cannot be used in court if no settlement is reached; 

  • Any party can leave at any time for any reason; 

  • The mediator isn’t a judge;

  • An agreement only becomes binding when it is written and signed by all parties.

Is mediation suitable for personal injury cases?

Personal injury or clinical negligence claimants might find mediation helpful in settling their claims, particularly if negotiations have broken down. In particular, it can aid settlement negotiations in disputes involving: 

While going to court is a valid option, it’s sometimes stressful, time-consuming, and costly. On the other hand, mediation is usually quicker and doesn’t require a court appearance, which can be intimidating. 

Additionally,  mediation offers a confidential space for parties to freely express themselves. This can be a very healing process for claimants and might result in a settlement if the defendants acknowledge the pain and suffering of the claimant and apologise, which they can do in mediation without affecting insurance policies or future trials.

Is mediation suitable if I’m filing a claim against multiple parties? 

Yes, many mediators can help provide mediation in claims against multiple parties. 

Is mediation required in personal injury cases?

Mediation isn’t mandatory in personal injury cases. In fact, it’s only effective if both parties enter into it with an open mind. That being said, mediation is well-suited for personal injury and clinical negligence cases, despite not being widely adopted. 

In many cases, mediation provides a chance for individuals who’ve suffered harm due to negligence or carelessness to calmly and safely express their experiences and future needs. Similarly, defendants get to understand the direct impact of the issue firsthand. 

What happens in mediation for personal injury and medical negligence claims?

Mediation is a flexible process that is guided by the parties involved. However, here’s an idea of what you might expect from mediation in terms of a personal injury or medical negligence claim: 

  1. The mediator will meet with you and anyone you’ve brought along for support. A mediator usually confirms that the goal of mediation is to assist you in settling your claim and that it is not a courtroom proceeding.

  2. Mediation sometimes begins with a joint meeting of all parties. This is not mandatory and you will not be forced to do it if you don’t want to. During this phase, the mediator will explain the rules of mediation to make sure all parties are on the same page. 

  3. Each side will then be invited to make an optional opening statement that gives their perspective on a case and goals for mediation. You, or your solicitor, may also decide to share the impact of your injuries and explain why you believe the other parties should pay. Following the opening statements both sides can respond, and the mediator may ask questions to clarify facts or get more information. 

  4. Following the joint meeting (if there is one) the mediator will have confidential meetings with each party privately. In some cases, they will facilitate negotiation, communicate settlement offers between parties, or try to nudge negotiations along if they reach a standstill. This process continues until a settlement is reached.

  5. In some cases, the mediator might recommend further joint meetings, either between everyone involved or just their lawyers. This is a call made by the mediator and is usually only done if they believe another joint meeting will help both parties progress toward a settlement. 

  6. If an agreement is reached, it is documented and signed by both parties. This is a legally binding agreement and, at this point, the matter is considered settled. 

Dos and don’ts in mediation for personal injury claims

There are no specific dos and don’ts for mediation processes of personal injury claims in the UK.

Your mediator will lay out the rules of the mediation before you begin on the day, and you can always ask them what you are and are not allowed to do in the process before mediation begins.

The Ministry of Justice has published a guide on the benefits of this form of dispute resolution if you want to learn more. 

You should be aware that in the UK it is typical for both sides to pay an equal share of mediation costs for personal injury and medical negligence claims. The cost will vary depending on the complexity of your case and the experience of the legal professionals you choose to hire including your legal team. 

You can also ask the mediation provider about their costs before hiring them.

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For help and advice relating to making a personal injury claim or a medical negligence claim, get a free case assessment from our legal assessment team today.

Our personal injury solicitors offer legal help and support to individuals looking to make a compensation claim on a no-win, no-fee basis, to help you access justice and give you the best chance of securing the compensation you deserve following an accident.

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