Professional Negligence MediationMediation By Professionals For Professionals
Mediation by Professionals for Professionals
We have a separate website devoted to Professional Negligence Mediation.
Professional negligence disputes often involve allegations of poor or negligent advice and even fraud, leading to sensitive, protracted and expensive litigation that the parties can ill afford, particularly if they have already suffered loss. Claims are often funded by conditional fee agreements and/or damages based agreements.
With professional indemnity insurers involved, the issues can be become more complicated, leading to further pressure on the parties both in terms of costs and time.
Dispute resolution processes such as mediation offer clients an opportunity to manage such disputes sensitively, confidentially and quickly. Professionals’ reputations are often on the line and mediation can help to reduce the risk of reputational damage.
As the Courts increasingly penalise parties who refuse or ignore invitations to mediate it can be negligent to fail to offer mediation at an early stage or to accept an invitation to mediate.
The Professional Negligence Pre-Action Protocol expects the parties to a professional negligence claim to undertake alternative dispute resolution, to include mediation, before commencing any proceedings.
Many claims are subject to so-called standstill agreements, which freeze the case without settling or dismissing it. We can provide a precedent standstill agreement if that would assist in your case.
The idea behind standstill agreements is that they give claimants some extra time over and above the official time limits within which to finalise their investigations, in circumstances where they would otherwise be forced to start litigation and incur expensive court fees and other legal costs.
Claimants and defendant insurers are often happy to put matters on hold while they try to resolve them and avoid having to pay the issue fee or defence lawyers’ costs. Litigation is increasingly expensive and outmoded. Mediation is a far preferable way of dealing with a professional negligence claim than protracted and expensive legal proceedings, involving costs and Court fees, which have risen exponentially. It can cost 5% of the value of the claim to issue it at Court.
If fixed recoverable costs are introduced, as planned, then there will be a further incentive to resolve claims early on as any costs over the cap will not be recoverable from the other party.
For insurers and claimants alike it is better to spend a relatively small sum on a mediation rather than continuing with costly litigation.
FIXED PRICE MEDIATION
Fixed price mediation provides the services of a ProMediate Chambers Panel Mediator for a fixed price that covers all pre-mediation preparation and mediation time on the day itself up to a maximum of 7.5 hours.
Fixed Price Mediation Service – What does it offer?
Fixed price mediation provides the services of a ProMediate Panel Mediator for a fixed price that covers all pre-mediation preparation and mediation time on the day itself up to a maximum of 7 hours (plus grace period of half an hour).
ProMediate will select the mediator on the parties’ behalf or a shortlist of mediators can be provided from which the parties can choose
Who are the mediators?
ProMediate Civil Mediation Council Registered mediators have been selected to be on the Panel based on their performance and our clients’ expertise requirements.
The cost is calculated using the scale detailed below.
Claim values are calculated by the quantum of the higher of the claim or the counterclaim.
COST PER PARTY
Claim value £75,000 £125,000 £250,000
7 hours Fee plus VAT £500 £1000 £1250
We also offer time limited, half day and Telephone Mediation
*Extra hourly charge applicable after 7.5 hours of mediation time only £100
What is covered under the fee?
All reasonable preparation and up to 7.5 hours mediation time
Full administrative support provided by ProMediate Chambers
Mediators’ travel expenses to attend a venue within 60 minutes of home/work
What is not covered?
Venue hire costs if any (minimum of two rooms required)
We can assist with finding venue
Mediators tend to arrive to prepare and set up the mediation no less than 30 minutes before the mediation begins.
How long does it take to arrange the mediation?
ProMediate Chambers can arrange the mediation within 48 hours.
Disputes between more than two parties
Disputes with either a claim or counterclaim in excess of £250,000.
For all of these types of dispute we offer a bespoke service. Please contact ProMediate’s office for details on 0203 621 3908 or email us at email@example.com
Mediation by Professionals for Professionals
Penalties for Refusal to Mediate
Since the case of Halsey v Milton Keynes, the Courts have deemed a refusal to mediate as constituting
unreasonable conduct when considering costs at the end of the case. There is still uncertainty following recent cases as to whether the Court will penalise a successful party who refuses to mediate and how. One thing is certain, however, that you can reduce the risk of an adverse costs order by agreeing to mediate. Some Courts issue an Ungley or Jordan order providing that the parties lodge a statement at Court explaining why they are not willing to mediate, for the judge to consider. The Courts have shied away from making participation compulsory but the debate continues. There is an instinctive feeling in the Courts that forcing mediation on the parties is the wrong way to go, although a cynic might point to the fact that many judges come from the ranks of the Bar and there is a prejudice against resolving disputes outside the adversarial process.
An example of a professional negligence case where a party refused to mediate is that of Lynn v Borneos LLP. This was a professional negligence claim which, for the purposes of determining the costs, the defendants won. The claimant argued the defendant unreasonably refused to mediate. The court agreed, allowing the defendant to recover only 60% of their costs.
The judge noted there was no reasoned refusal to go to mediation, the defendants simply did not respond or made “a fairly bland refusal to all the invitations to mediate … the effect of authority is now, in my view, that the court should regard a refusal or a failure to engage in a mediation in those circumstances as unreasonable”. The costs penalty was imposed notwithstanding the defendant’s confidence in its own case, which confidence was borne out by success at trial and the judge’s view that “nothing I have seen suggests to me that there would have been any realistic hope that the matter would have settled at mediation” . The court also noted the defendants regarded the claim as a “try-on” and explored the possibility of making allegations of fraud or discreditable conduct against the claimant. This didn’t stop the judge from penalising the successful party for not mediating.
Unless the client gave clear instructions to fight the case and to refuse mediation, which they are entitled to do, and to take the risk, a refusal to mediate which leads to a worse costs outcome might constitute negligence by the Solicitor. The client should receive clear advice about mediation options so as to make an informed choice as to the risks.
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