Mediation often ‘cathartic’ in catastrophic injury cases but it shouldn’t be compelled, experts say

Many plaintiffs in catastrophic injuries cases find mediation “cathartic” and the vast majority of such cases settle via such intervention, a seminar hosted by a judge-led organisation has been told.

Solicitor Ernest Cantillon, whose firm specialises in medical negligence litigation, stressed mediation must be voluntary and the courts should not pressurise litigants into it, such as by warning of possible legal costs consequences if they decide against entering mediation.

The Constitution requires justice to be administered in courts in public and “a private parallel system of administering justice” cannot be set up without the consent of litigants, he said.

More than 90 per cent of personal injury cases settle before they come before a judge and the fact court lists are under heavy pressure should not be a basis for mandating mediation, he said.

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Voluntary mediation is an “excellent” way of resolving complex cases and, in his view, works best when done in tandem with litigation.

Judge Cross was ‘not convinced’ mediation was always the best solution in medical negligence cases and noted it had not worked in the case of Vicky Phelan

Mr Cantillon, senior counsel/mediator Sara Moorhead, High Court judge Marguerite Bolger and her retired colleague, Mr Justice Kevin Cross, all agreed mediation should not be forced on parties.

All four were speaking at a recent seminar in Dublin on mediation in catastrophic injury cases. It was organised by the Irish branch of GEMME, a judge-led European organisation working towards encouraging mediation in litigation.

‘Not convinced’

Judge Cross, who chaired the event and managed the High Court’s personal injuries list for several years, said he “entirely agreed” with Mr Cantillon that, to be legitimate and successful, mediation must be voluntary.

He was “not convinced” mediation was always the best solution in medical negligence cases and noted it had not worked in the case of Vicky Phelan, the Cervical Check campaigner, since deceased, whose case ultimately settled for €2.5 million.

The courts are there for people and the best way to keep costs down in litigation is to get the parties “to the door of court as quickly as possible” without unnecessary pretrial applications and judicial case management, he said.

In his address, Mr Cantillon said that if a mediation succeeds, the cost to the plaintiff is the mediator’s fees, ranging from €5,000 to “multiples” of that in more complex cases. A failed mediation can add “significant” costs to the legal process because, on top of the mediator’s fees, there will be some €20,000 or more in fees for a solicitor and fees ranging from €25,000 to €100,000 for a senior counsel in complex mediations.

Plaintiffs have an obvious interest in securing compensation for catastrophic injury but finance is not the only consideration, he said. There is often a “huge amount of emotional baggage” about how the injury occurred and its consequences, and patients or their family members want to know “what happened, why it happened and some reassurance it will not be repeated”.

In mediation, the plaintiff can request the attendance of the doctor responsible for the error, he said. That can be “cathartic” but mediations can lack a sense of a wrongdoer being held accountable in a public forum and some people want their day in court.

His experience is that mediations at a later stage of the litigation process have a much greater chance of success. He accepted that legal costs are “far greater” at that stage.

The entire process would be greatly assisted if “meaningful” defences were provided at an earlier stage. Introducing pre-action protocols here might facilitate earlier mediation, he added.

‘Very tragic’

In her address, Ms Moorhead said her personal view is that mediation is “a far better” forum for catastrophic injury cases than a court case, particularly where liability is at issue.

It is very important to plaintiffs to tell their stories, she said. Many are “very tragic”, many struggled for years with “very limited” backup from the State and are in a situation where, no matter what money they get, they are going to be left with a very disabled child, she said.

Some plaintiffs are ‘more bitter’ than others and many appeared to have had little backup from the health system, such as counselling

Whatever view one takes of liability issues, the parents are “admirable”, Ms Moorhead said. Such mediations require “great sensitivity”, and life expectancy is a particularly difficult issue.

It is very important that families understand the issues and they “should not be patronised”.

Apologies are very important to many plaintiffs, if they can be given, she said.

Some plaintiffs favour privacy but others want the apology in public and some want their day in court, she said. Some plaintiffs are “more bitter” than others and many appeared to have had little backup from the health system, such as counselling.

In recent years, she had noted a willingness to come to mediation in a “meaningful way” and not to treat It as “a box-ticking exercise”, Ms Moorhead added.

When closing the seminar, Ms Justice Bolger, a member of GEMME who conducted many mediations before her appointment to the bench, said she considered there is no situation that does not benefit from mediation. “Even an unsuccessful mediation can help resolve litigation.”