The Extremities of Mediation and the Importance of Process

Abstract

Based on the author's unrivalled experience of mediating clinical negligence and personal injury claims in England, Ireland and South Africa, coupled with his fifteen years of writing about the place of mediation in civil justice, this article discusses the nature and objectives of mediation in the context both of clinical negligence and right-to-life claims. He sets his views against his own redefinition of mediation as 'a confidential complex conversation facilitated by a skilled neutral', centred on his argument that engagement in the mediation process is as important for participants as achieving settlement outcomes. This both justifies its regular use in right-to-life claims and explains the growth of mediation as a particularly appropriate process for progressing clinical negligence claims and meeting the needs and objectives of claimants and clinicians in such disputes, even where one party seeks to persuade the other that their claim or defence is without any merit.