Bill Braithwaite QC has published an article proposing ADR for personal injury claims:
I was involved in a personal injury settlement meeting recently and for the first hour we assumed that Judge A would try the case.
We were then told that it would be Judge B – chalk and cheese; one personal injury and good, the other chancery and bad. It could have made a difference of a million pounds.
We checked with the court, and ultimately Judge A was listed. A relief – but that’s no way to run multimillion-pound catastrophic injury litigation; it’s a lottery.
In major personal injury claims, we could combine all the tools in the alternative dispute resolution toolkit – in other words, not just mediation – and add our own experience and imagination to produce a system that I call neutral facilitation.
It would be possible for the parties to agree at the outset, or during the course of the claim, to appoint a neutral and knowledgeable person as a facilitator, to help the parties to manage the claim and to resolve issues, before they dominate the relationship. The object would be to avoid reference to the courts.
The range of the neutral facilitator’s powers could be wide, but the essence would be that the purpose is not just to settle a claim; it would be far wider, namely to help to manage all issues.
A classic example might be getting the injured person home from hospital. His lawyers want a million-pound house, but the insurer would rather be cautious, and suggest rented accommodation; that can produce a real problem. Through the facilitator, insurers could become directly involved in helping to devise a plan.
Rehabilitation always has a tension; claimants and their lawyers can be sceptical if the insurer is involved in the choice of unit or personnel, whereas defendants worry about money being spent without clear goals and targets. Managed discussion helps to identify and monitor reasonable objectives and implement them in real life.
Selection and management of the case manager can be another area of mistrust, as can the selection of experts. A good neutral facilitator would have valuable input into making sure that both sides use good experts – there is always a choice, so why use one who will alienate the other side?
When finalisation of the case approaches, the facilitator would be involved in the process of identifying and resolving issues, and making sure that the parties bring realism to the negotiating table. This would not be simple mediation, but would involve more wide-ranging tools such as evaluation, determination, binding or non-binding, oral or in writing, with or without evidence (including so-called hot tubbing).
My system would have the support of the courts and good lawyers on both sides. Enlightened insurers are also becoming more receptive to the idea of genuine co-operation, and of limiting the use of non-specialist judges. All it requires is a shift in litigation ethos to make the court the last resort.
Bill Braithwaite, QC, specialises in catastrophic brain and spinal injury litigation and is based at Exchange Chambers in Liverpool