For the avoidance of doubt the following article was not intended to imply that it is necessary to pay NHSR to be on their mediation panel, but rather that it is necessary to pay CEDR and Trust Mediation to be on their panels. Also, we were not seeking to suggest that NHSR’s tender process was unfair but rather that the panel appointed have a head start when it comes to the review in the Autumn.
We are therefore retracting and amending our previous article which should have read as follows:
Mediation in clinical negligence claims is a worthy cause. The article in Litigation Future sets out the position quite well. However, in my view the market has been cornered by two mediation providers. #CEDR and Trust Mediation we’re appointed initially by NHSR.
I recently spoke at the MedicoLegal conference with Sir Rupert Jackson, and can agree that there was a lot of interest from lawyers and medics alike. But law firms are channelled by NHSR to use a limited number of mediators on its official panel and this limits the work for other mediators who don’t want to pay the membership fees to be on CEDR or Trust Mediation’s mediation panels.
Nothing gives a mediator more satisfaction than resolving a clinical negligence claim. I have done it myself on several occasions. It is a struggle to get appointed as two organisations have been appointed through tender by NHSR. It is certainly not a “level playing field” when it comes to mediation appointments, as new mediators soon find out after they have completed the expensive training course with CEDR (it costs more than others and is a requirement of joining CEDR) or even our own course.
The providers already on NHSR’s panel have been given a head start when it comes to tendering again in the Autumn in my view as they have been given the opportunity to develop their experience further in the two years in which they have been operating for NHSR. So the status quo in the mediation marketplace is self perpetuating for the “elite” mediators who have got in there first. “If you can’t beat em join em” you might say but I intend to continue to compete and not pay CEDR and Trust Mediation’s panel annual membership fees (which are higher than we charge).
In my view when reviewing its panel, NHSR should look at the diversity of the panels it is using. It should reflect the diversity of Claimants using the service.
It is already a requirement to be a member of the Civil Mediation Council and I hope that it is not made a requirement to be part of the APIL/MASS/FOIL register as this only adds an additional layer of expense for mediators.
There is no reason why mediators should have to join this additional panel and increase the incomes of those organising it. It is also difficult for new mediators to join that panel as they have to show 5 years experience in personal injury claims. It therefore reinforces the existing cadre of mediators which come from a limited pool.
So to conclude, mediation is increasing in clinical negligence claims through NHSR but this only benefits those mediators who are on CEDR or Trust Mediation’s panels as they have exclusive access to NHSR mediations.