With all the recent changes to the legal system I am seeing a flurry of cases which are being referred to mediation. The costs of litigation are soaring despite the implementation of costs budgets. The reality bites when parties embroiled in litigation face the real prospect of losing everything they have if they do not succeed in their claim or defence.
Often (and in my experience as a professional negligence specialist), a claimant has formed their own view on what they think their claim should amount to. They usually have great expectations and it comes as a real blow to them when you actually explain that the courts see things differently. Managing this is something which is essential to ensure a client understands their claim.
Mediation is a good way of exploring settlement and often very helpful in narrowing the issues between the parties even if a settlement is not achieved. Here are some useful tips for parties on what they need to do before and during mediation in a professional negligence case:
- Make sure you understand the value of your claim and the risks of pursuing the claim to trial.
- Ensure you’re familiar with the mediation process and that you are fully prepared. Ask your solicitor to talk you through it.
- Make sure your solicitor has prepared a mediation bundle which should include your Position Statement for the mediation along with the pleadings and relevant documents.
- Know what your parameters are in terms of negotiating a settlement. Make sure you are aware of the bottom line figure both in terms of damages and costs that you can settle at.
- Remain calm and don’t be afraid to ask to speak to your solicitor in private in the event that you are unwilling to accept what you consider to be a low offer. Your solicitor should talk you through the risks.
- Do not be afraid to ask your solicitor that the mediation process should be stopped if no reasonable offers are made or the parties are too far apart. Sometimes this can be the right thing to do.
Obviously the above tips should be considered on a case by case basis but I find that ensuring you are familiar with the process and are prepared to talk to your solicitor about them can help in managing your own expectations.
By Liam Waine, Partner and professional negligence solicitor