Recently Minister Richard Bruton has spoken about efforts to be made to reduce the cost to the State of Medical Negligence claims. It will be months before the government announces new processes in this regard – he has suggested something modelled on PIAB. We’ll have to wait and see.
However, the matter has already been addressed to some extent in S.28 of the Draft Mediation and Conciliation Bill, 2010 by virtue of which it is likely that “Early Neutral Evaluation” will become an integral part of Personal Injury cases as soon as the Bill becomes enacted – sooner rather than later. In this regard Personal Injury specifically includes injuries arising from alleged Medical Negligence and the Explanatory Note to the Bill states that this process may assist in claims already in existence in which the State is represented by the State Claims Agency. Accordingly, people should be aware not only that this new development is coming but that it may well have an effect on cases already in being.
Some American States have already extended this ENE process to many, if not all, areas of civil litigation and it has even been incorporated into the Courts systems of some of them. It has evolved to mean different things. Just as there are many different ‘styles’ of mediation (directive or non-directive; caucus or non-caucus; evaluative or facilitative; etc.), and just as there are many forms of arbitration, so too there are many different things that happen under the general rubric of “neutral evaluation.” At its core, neutral evaluation is exactly what it says it is: a process in which a neutral third party examines the evidence and listens to the disputants’ positions, and then gives the parties his or her evaluation of the case. However, it can be much more than that too: it can be an extraordinarily flexible, beneficial process, and in the hands of a skilled neutral evaluator and/or Mediator it can go way beyond someone simply hearing the facts of a case and then pegging a number or outcome to it.
The development of neutral evaluation as an ADR technique came about in response to a reality we have all been confronted with many times: one of the main reasons cases don’t settle sooner than they ultimately do is because someone – sometimes one of the parties or their non-legal advisers, sometimes a solicitor or barrister, or maybe an expert – has misunderstood or mis-evaluated the case. That leads to unrealistic ideas about the probable outcome which in turn leads to unnecessary stubbornness, which in turn leads to maddeningly slow process, eventual setting down for trial and finally, at the very last minute, efforts at settlement on the morning of the trial.
There is nothing worse than being told on the morning of a case that because it has taken up so much time and effort the costs are going to be such that you are going to come out with very little – even if fully successful in establishing (vindicating) your position in relation to the issue. Then, to add insult to injury, you are likely to have to endure an explanation that such total success/vindication is highly unlikely because …….. It can be equally difficult for a solicitor or barrister to have be the bearer of such news.
If only a person and his/her lawyers could have had some sort of ‘reality check’ earlier on in the litigation, they might not have become so enamored of their own mistaken notions about the value or viability of the case, and there might have been more real money available at the end to resolve it. Intervention is needed before everyone gets dug in.
With the recent advent of privately-conducted mediation the problem of getting to settlement too late in the game is beginning to be lessened somewhat, but only somewhat. There are several reasons – some legitimate and some not – why it’s often difficult to suggest or engage in mediation early in the life of a case. Sometimes the psychological barrier is too great to suggest mediation early on, or sometimes you really do need more discovery and analysis in order to understand the true value of the case.
At this early stage in the evolution of ADR processes one of the big problems with getting people to engage is a perceived stigma of weakness which some people (incorrectly) think is shown by a call to mediation. A call to your opponent to engage in Neutral Evaluation can actually be seen as a display of strength. If someone balks at engaging in mediation, as such, because they think they’ve got such a great case, then Neutral Evaluation can appeal to their vanity if it is pointed out to them that if they have such a great case, they should have no fear of laying it all out on the table in a neutral evaluation session. One could put it to them that, ‘If your case is so good, you can’t possibly have anything to hide, right?’ Then they are in the awkward position of indicating to you a fear or weakness about their case if they don’t agree to engage in this ADR process.
And unlike arbitration, neutral evaluation has none of the baggage of adjudication. It is a completely voluntary process, under the same terms as Mediation, from which no order, judgment, sanction or levy of costs or fees will happen, unless both/all of the parties themselves agree to such.
New Neutral Evaluation Service provided by Mediate Ireland
Mediate Ireland have introduced a new service specifically addressing the issues outlined above. The Neutral Evaluation Service provided by Mediate Ireland is cost effective, successful and is provided nationwide. A typical Neutral Evaluation last 2 hours with an experienced Evaluator.
Mediate Ireland have a panel of experienced Evaluators and further analysis of the Neutral Evaluation process will appear in later Newsletters. If you wish to avail of this service contact Mark Small on 087-2268394
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE