Top tips for preparing for mediation in healthcare disputes
Offering confidentiality, cost-effectiveness and flexibility, mediation is a form of alternative dispute resolution favoured by the healthcare sector.
What is mediation?
Mediation is a confidential dispute resolution process which involves parties working with a mediator to understand the issues on both sides and to work together to try and reach a mutually agreeable resolution.
When parties are involved in a dispute, effective communication and negotiation can be challenging. A mediator is a neutral third party who can help navigate these difficulties and facilitate discussions.
Usually, mediations take place at a neutral venue with the mediator and both parties present. The parties are often supported by Legal representatives and other experts (for example, specialist accountants and surveyors) but this is not always necessary. On occasion, we have supported clients by telephone to help ensure costs are proportionate, but this is not always appropriate. The parties are usually based in separate rooms with the mediator going back and forth between the rooms, though there can be joint sessions with all parties present.
The mediator does not decide who is right and who is wrong, but instead encourages the parties to consider the risks and potential rewards of pursuing the matter through formal processes, and to explore options for compromise.
Why use mediation?
Many partnership agreements require partners to attempt mediation to resolve their differences. As such, it's always important to check your partnership agreement when a dispute arises to help you understand your legal position and the processes for resolving disputes.
Mediation is more informal and is very likely to be significantly more cost-effective than arbitration or court proceedings, which can involve a lengthy and costly process. Mediation can be arranged within a matter of weeks and so can be used to resolve disputes far quicker than formal proceedings.
While you need to assess the suitability of each case individually for mediation, statistically, mediation has good prospects of leading to a resolution of the dispute. CEDR (the Centre for Effective Dispute Resolution) published a Mediation Audit on 1 February 2023, which analyses 328 responses from mediators regarding their experience of mediation in the previous two years. It reports that 92% of cases achieved settlement on the day of mediation or shortly after.
Our experience is that mediation can work well in a wide variety of healthcare disputes, including:
- Dental or GP partnership disputes
- Internal disputes within a healthcare company
- Contractual disputes with NHS commissioners
- General commercial litigation
Our five top tips
A significant supply of snacks and coffee is essential to get the best out of a mediation day. In addition to ensuring your brain is properly fuelled, our five top tips are set out below.
1. Seek appropriate specialist advice
A mediator is a neutral party and cannot provide legal advice. As such, it is important to seek independent legal advice to enable you to understand your legal position early on in preparation for and during the mediation process. Discussing expectations and objectives with a solicitor prior to the mediation will also help to ensure that discussions on the day are relevant and constructive.
Depending on the nature of the dispute, it may also be useful to seek expert advice from other professionals such as specialist accountants and surveyors. In addition, representative organisations such as Local Medical Comittees (LMCs) and Local Dental Comittees (LDCs) may be able to provide advice and support (to parties on both sides of the dispute) or may even offer mediation services.
If a settlement is reached via mediation, it is important to document the settlement appropriately and instruct solicitors to prepare a settlement agreement. We would always encourage clients to seek specialist accountancy advice before finalising a settlement.
2. Prepare
Preparation is key. Consider your best and worst case scenarios if the dispute cannot be resolved through settlement and ends up in formal proceedings (court / arbitration or similar).
Ensure the parties have set out their position in advance of the mediation so that both parties understand their opponent's case and their desired outcome.
Typically, parties to a mediation are required to prepare position statements and mediation bundles for the mediator in advance of the mediation. You want the mediator to arrive on the day of mediation with an understanding of the dispute and any previous attempts to settle. They don’t need to see every document relating to the dispute, but you do want them to have a good flavour of what has gone on and the reason the case has not settled to date.
We'd always recommend that you prepare a draft settlement agreement in advance of mediation. You don’t want to start drafting from scratch late in the day and it can help frame settlement discussions.
3. Select a mediator with relevant experience
We recommend that our clients use mediators with experience and expertise in handling disputes of a similar nature. Instructing a mediator with relevant knowledge and experience not only provides confidence to all parties but may also boost efficiency and curb preparation costs.
4. Check attendees have appropriate authority to negotiate and settle the claim
While mediation is significantly less expensive than formal proceedings, there are costs involved (management time and the fees of any mediator, solicitor, accountant, surveyor involved). It is essential that both parties have adequate authority to negotiate with you and enter into a binding settlement agreement. If you are in any doubt as to your opponent's authority, question this in advance of the mediation being confirmed.
5. Think creatively about compromise solutions
The options available to a judge, expert or arbitrator can be quite narrow. In mediation, you have flexibility to consider solutions to a dispute that are not available in a formal proceedings.
Bear in mind that you are likely to need movement on both sides if a compromise is to be achieved. You opponent is not going to accept that you are right - you would not be in a legal battle or need mediation if that were the case.