Mediation - Arbitration - Alternative Dispute Resolution
Not everybody relishes the idea of going to court. In many cases the idea of facing a judge is the one thing putting them off making a claim. As we establish ourselves in the 21st century it is clear that this age old method of verbal combat to conclude our disputes is not going to hold up. The Social Media generation are used to having disputes decided by a faceless administrator in a third party payment centre. They are not interested in contract law. The same may well one day be true for medical disputes. However, until then the court process as it currently stands is certainly the most popular method for ending an action. it is though, not the only one.
Mediation is method of alternative dispute resolution (adr) that has gained a lot of traction in the last years of the 20th century and seems to be increasingly popular even today. It provides for an independent mediator. Usually a senior lawyer or someone with years of experience in the specialist field - who has either retired or is moving toward the end stage of their career. They act as an independent facilitator, moving back and forward between the warring parties stimulating debate and focusing on the things that need to be resolved and the things that may be just clouding the real issue. A skilled mediator is a rare thing. There are plenty of Barristers, Solicitors and even Medics playing at this game but few are really equipped with the diplomatic skills to make these sessions really worked. I have even had a Barrister acting as a mediator begin the session by stating "mediation is about disappointing everyone". The need to agree a mediator who is open, transparent and diplomatic is therefore essential.
The final settlement is not binding on the parties unless it is bound up in a court order, it is up until that point, an agreement of honor.
Arbitration is a sort of half way house, between the mediation process and a court trial. An expert similar to a mediator above, hears both sides of the dispute and then pronounces what the correct solution should be. Both parties must address the arbitrator but can do so in a manner which is less formal than a court hearing.
The crucial point about arbitration is that it requires both parties to agree absolutely to be bound by the decision beforehand. There is therefore, a clear and unambiguous danger that either side could fail in the action and in this respect the arbitration decision can be a little difficult to bear.
There are others: expert determination mediation/arbitration (hybrid), round table discussion, negotiation, sealed bidding etc. However, 99% of the ADR that takes place in the UK is Arbitration or Mediation.
If you have a claim that you think is suitable for medical arbitration, then get in touch and we will see if there is potential for bringing such an action.