Planned Introduction of a High Court Practice Direction encouraging Mediation in Medical Negligence Cases

The President of the High Court, Mr. Justice David Barniville has announced Judicial plans for the introduction of a new Practice Direction regarding the use of Mediation in medical negligence claims. Alison Kelleher, Member of Law Society of Ireland’s ADR Committee and Partner at Comyn Kelleher Tobin considers the Judge’s comments.

Speaking at a conference hosted by the Law Society of Ireland’s Alternative Dispute Resolution Committee yesterday, Judge Barniville described how parties have whole heartedly endorsed mediation as a practical, effective and efficient way of resolving complex medical negligence disputes.  He noted that in recognition of the effectiveness of Mediation, there are plans to formalise Mediation as an important step in the medical negligence litigation process.

New Practice Direction

Judge Barniville advised that he has carefully consulted with Judges working in the area of medical negligence and in particular, with Mr. Justice Paul Coffey who leads the personal injuries list and the resounding view of the Courts is that mediation is already a commonly used and effective way of resolving complex medical negligence disputes.  Noting that it is now highly unusual that a medical negligence hearing would proceed without parties engaging in mediation in light of the significant benefits that mediation offers, the judiciary would like to see earlier mediation facilitated where possible.

Acknowledging that there is no doubt that resolving medical negligence disputes through mediation is in the best interests of all involved in medical negligence cases, he noted that in many cases mediation is left very late in the proceedings.  He announced that to encourage parties to enter into mediation sooner, a Practice Direction will be introduced “in the coming months” directing that parties attempt to mediate before applying for a date for hearing.

Judge Barniville clarified that the Practice Direction will not compel parties to mediate but rather will encourage parties to attempt mediation before applying for a trial date.   It is intended that the Practice Direction will strike a balance between facilitating earlier mediation and the potential of adding unnecessary costs to litigation.

Judge Barniville commented that the common theme seen by the courts is that parties are mediating but all too often at a time in which the parties are “entrenched” and significant costs have already been incurred on all sides. Whilst the precise wording of the Practice Direction is awaited, it is encouraging to hear that the Courts are keen for mediation to be considered at an earlier point in proceedings rather than close to a specially fixed trial date.

The effectiveness and practical benefits of mediation were also highlighted by Comyn Kelleher Tobin’s Partner Eamon Harrington, President of the Law Society.  Eamon spoke about his personal experience of Mediation of Costs Disputes, initially borne out of delays in taxation of costs, but a trend which has grown and continued to be a preference for parties in particular in medical negligence actions.  He spoke of the commitment by the Law Society to educate and encourage mediation as no longer an alternative and the ongoing work of the Law Society in establishing a shadow Mediation Council.

An interesting panel discussion of experienced mediators and solicitors, chaired by Liam Guidera included Helen Kilroy, Martin Lawlor and Julie Sadlier, members of the ADR Committee reflecting on the increasing role of mediation across all types of disputes.

Summary

It is very common for conferences on the topic of mediation to be an echo chamber of endorsement of mediation.  Yesterday it was most encouraging to hear the positive words of the Judiciary in firstly, endorsing the success of in mediation in recent years but also to hear of the plans to take a positive action to shift the onus on the parties to attempt mediation at an earlier point in litigation.  Quite apart from the direct benefit of engaging in earlier mediation, it is hoped that the Practice Direction will, in time, indirectly assist in reducing the wait times for a specially fixed hearing date for medical negligence actions which is currently running at almost twelve months.  There is no doubt that the Practice Direction will be welcomed and embraced by both parties and legal practitioners alike.

Alison Kelleher is a Partner in the Litigation and Healthcare Departments of Comyn Kelleher Tobin.  A CEDR accredited Mediator and Member and Former Chair of the ADR Committee of the Law Society, Alison is a keen proponent of Mediation to solve complex medical negligence claims.