The Personal Injury Team here at Brodies is part of our Litigation department. That means we’re all about disputes apparently (from the latin litigation- a dispute). Yet in the many situations involving accidents which we deal with, entering into a dispute seems to me to be the last thing people need! Priority number one should be recovering and getting better and thankfully it generally is.
However, the current process of raising a claim and then potentially a court action is the accepted practice in PI which has grown over time. Some of us have even become specialised in it! The question is whether it is the best way of dealing with claims?
I got thinking about this as the terms “mediation” and “alternative dispute resolution” have been hovering around the personal injury sphere for a long time without anything really changing. Mediation is a process of settling a dispute with the assistance of an external independent party- not a judge, and not necessarily a lawyer. The process has seen considerable success in recent years as an alternative to the costly process of court in areas such as family law, complicated commercial disputes and employment law.
For the moment there are no formal provisions for Mediation within Scottish court procedure as far as Personal Injury claims are concerned, although you could argue some parts of the court process are expressly designed to encourage settlement by negotiation. Most Personal Injury claims begin life at least with an attempt to resolve without the need for court under the Voluntary Pre-Action protocol agreed with the insurance industry. The optional nature of it means not everyone buys in and so many claims automatically end up in court..
Would a formal requirement for mediation aid clients to resolve their case more effectively or efficiently? Experience inEnglandin the Small Claims Court (Cases under £10,000- non Personal Injury) suggests this is possible even in lower value cases and that parties are generally more satisfied with the outcome. On the back of this, genuine suggestions that mediation could be of use in PI cases are doing the rounds. While the usual suspects are claiming that it might become another form to fill in; more expense to be passed on to a Third Party or client; and ultimately most cases settle through negotiation- why change?
Personally, I welcome any attempt to meet the issues head on in a human way “it’s good to talk…” as BT used to say. While mediation in any formal way may be years away, even just talking about it in the PI world must be a good thing.
