Alternative Dispute Resolution (ADR) – Early Neutral Evaluation (ENE) and Mediation

ENE and Mediation are both forms of alternative dispute resolution, that is, a way of settling a dispute away from a courtroom trial.

Court proceedings are generally lengthy and expensive, particularly in clinical negligence claims, and these routes offer both parties an alternative way to bring a matter to a conclusion. ENE or Mediation can be used prior to issuing Court Proceedings or at any time during proceedings up until trial. In medical negligence claim it can be a long time between issuing Court proceedings and the eventual trial so ENE or Mediation would provide an opportunity to settle the claim much more quickly.

The Civil Procedure Rules, which parties to a clinical negligence claim must follow, provide for the Court to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case”.  This means that the Court can require parties to engage in ENE or even mediation so it is important to be familiar with it.

Early Neutral Evaluation

In an ENE the parties will present their respective cases to an independent third party, usually a judge or barrister with experience in the relevant specialist area of law.  This will include the documents that they intend to rely on and generally the evaluator will then listen to both parties cases at an evaluation session.

Having listened and read the evidence, the evaluator will give their opinion on the merits of each parties case or a particular aspect of a case. They may even give an indication of who they think would win at a trial.

The idea behind the scheme is to encourage parties to look closely and realistically at their own cases and to encourage early settlement. After the evaluator has given his opinion, the parties can provide for a process whereby they discuss settlement of the case.

The evaluator’s opinion is not binding on the parties in the way a Judge’s decision is in a courtroom. The evaluator will probably not have heard from any witnesses that would be called to give evidence at a trial and so parties are not bound to reach a settlement or accept what the mediator has said, however, even if the ENE doesn’t result in settlement of a claim, it is likely to narrow the issues in dispute and may lead to a settlement shortly afterwards.

Mediation

The NHS have their own mediation scheme for mediating clinical negligence claims. Unlike ENE, a mediator won’t usually give their own opinion on the merits of a case, instead, they act as a go-between between the parties trying to facilitate a resolution to the dispute and reach a settlement of the claim.

In a mediation the parties usually attend a meeting room in a neutral place, the parties will have their own private rooms and meet with the mediator separately first to set out their own positions. Then the parties will meet with the mediator present, who will try to facilitate a discussion.

Mediation is a flexible process and so there is no one way in which the day may go. The mediator should ensure that both parties have the opportunity to exchange their views and concerns.

It is rare for medical negligence claims to make it all the way to a trial and acceptance of a financial offer can feel a bit anticlimactic, especially in lower value claims. Mediation allows families party to medical negligence claims an opportunity to have their say and the parties can include non financial resolutions in their settlement proposals, for example, an apology, which no court can order.

Your solicitor and barrister will be present with you throughout any ENE or Mediation to ensure that you are getting legal advice about any proposals that are put forward by the other party. You can’t be compelled to do anything at a mediation, so if you are not comfortable meeting the defendant or doctor involved in your care then you do not have to. You also cannot be forced to settle your claim at either and Early Neutral Evaluation or Mediation appointment.

COVID-19 – Note most methods of ADR can now be facilitated either by telephone or video conferencing facilities, so parties can still engage in ADR. This is even more of benefits to parties now as the Courts are likely to be slowed by the Pandemic and social distancing requirements.