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Mediating professional negligence disputes - a safe pair of hands?



“I think that mediators and the entire resolution sector needs to do far more to educate the public about the methods and benefits of resolution, and the areas in which it can be usefully employed.

Sir Geoffrey Vos MR, March 2022 [1]


As a commercial mediator with many years’ experience as a dispute resolution lawyer, I will endeavour to meet this challenge. In previous articles, I have looked at commercial mediations in general – preparation, timing and alternatives. In this article, I come to professional negligence claims, an area which is well suited to mediation and one in which I have specialised for many years.


The issue of trust


In a speech at Hull University in March 2021, Sir Geoffrey Vos MR noted that:


“Trust is central to ADR as it is to court-based dispute resolution.”


Very true – but trust is also fundamental to the relationship between a professional and their client. The client regards the professional as a safe pair of hands, someone whose experience, knowledge and expertise will help them achieve an important personal or business objective, or guide them safely through a technically difficult issue or crisis. Once that relationship is fractured, it can be hard to re-establish the trust needed for effective dispute resolution.


For both parties, this may be the first time they have been involved in such a claim. The client feels let down. The professional feels they did their best. The client may fear that other professionals (including those dealing with their claim) will close ranks. The professional may fear that their good name and reputation will be unfairly tarnished.

In my experience, these (often unspoken) feelings and fears can make or break a mediation. They need to be appreciated and acknowledged, but they should not be allowed to overwhelm the serious business of seeking resolution. Recognition of the opponent’s situation can work wonders. An overly confrontational approach may leave both parties bruised and entrenched, with resolution further away. I recall a mediation some years ago where one party’s lawyer grossly overplayed their hand at mediation (aggressive and threatening) – the result was no deal, ongoing litigation, and an eventual climbdown when their client’s case went south…


Equality of arms


The question of ‘equality of arms’ is often brought up when I am discussing professional negligence claims with colleagues. Professionals are usually, though not invariably, insured against negligence claims, which may give rise to the concern that they can use deep pockets to outgun their less well-funded opponent, and drag out the dispute until the opponent is exhausted.

In my experience, these worries - although understandable - are misplaced. The underlying strength, or weakness, of a professional negligence case doesn’t depend on the resources of the party putting it forward. It is not necessary to mirror your opponent’s representation. Mediation is no time for grandstanding. A mediation advocate who truly understands their client’s case (whether solicitor, counsel or both) is more than a match for a hired gun parachuted in to make an impression.

As for insurers, they don’t write blank cheques: they would prefer to pay a meritorious claim than incur irrecoverable costs defending it – and they would prefer to defend an unmeritorious claim than pay it. In the modern litigation environment, simply dragging out a claim for ostensible tactical advantage would be a very risky strategy indeed, and one which could ultimately lead to adverse costs sanctions.

Furthermore, the increased availability of diverse litigation funding models (including CFAs, BTE and ATE insurance, and third party funding) may neutralise any perceived inequality of arms.


The role of mediation, the mediator and mediation advocates


There is a lot at stake for all parties involved in professional indemnity claims, not just financially - they can be highly charged and highly technical - but this does not put them beyond the scope of mediation and other ADR approaches [2]. On the contrary, mediation can be especially effective in creating a truly neutral environment in which parties’ voices can be heard, the pivotal issues can be identified and discussed, and realistic solutions explored.

The mediator has an important role in creating that environment, navigating the issues, and pro-actively managing the process. So too do the parties’ mediation advocates - the best ensure that their clients understand and trust the process, advance their client’s position robustly but politely while also acknowledging any risks and uncertainties, and they are resolution-focussed.


The direction of travel


We are heading into a world where ADR is integral to the resolution of civil disputes rather than an optional adjunct to the court process, not merely encouraged (or the subject of sanction if unreasonably refused) but court-directed and unavoidable:

  • The Civil Justice Council has confirmed that mandatory ADR is lawful if it is “not disproportionately onerous and does not foreclose the parties’ effective access to the court”. [3]

  • The Master of the Rolls agrees, but argues that his integrated “digital justice system” (consisting of “a digital funnel designed at every stage to identify issues and resolve them, with integrated mediated interventions at every stage”) will “ultimately render the issue of mandation academic.” [4]

  • High value and complex claims, such as those involving alleged professional negligence, may not be in the vanguard but the direction of travel remains clear: “commercial claims between businesses will probably be the last to be digitised, but they too will ultimately benefit from the changes being pioneered at the bulk end of the market”. [5]

  • In the meantime, professional negligence claims will not escape judicial pressure to constructively engage in ADR – see Richards & Anor v Speechly Bircham LLP & Anor (Consequential Matters), in which the judge rejected some familiar reasons offered for the failure to mediate and concluded that the defendants had unreasonably refused (albeit declining to order indemnity costs as a consequence). [6]

This increasing emphasis on, and integration of, ADR should hold no fears for professional negligence practitioners and their clients. Mediation has a proven track record in this context since the 1990s, and I have seen mediation successfully resolve a wide range of seemingly intractable professional negligence claims over many years since then.


In future articles, I will look in more detail at some distinctive features of professional negligence claims in the context of ADR and mediation.

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This article is for general guidance only, it must not be relied on as legal or other professional advice. Anyone engaged in a civil dispute should obtain their own legal and other advice specific to their circumstances and the applicable law at the relevant time.

© Duncan Crine Mediation Limited 23.06.2022

[1] Speech to the Worshipful Company of Arbitrators, March 2022 [2] The MR is uncomfortable with the language of “alternative” in “Alternative Dispute Resolution” in light of his vision for a fully integrated dispute resolution system as mentioned below, but I use “ADR” in this article as convenient shorthand in the well-understood sense of dispute resolution other than by the court itself. [3] Civil Justice Council report, July 2021 [4] Roebuck Lecture 6 June 2022 – for further insights into the MR’s vision, see previous lectures: Hull University, March 2021; GEMME lecture, October 2021; Worshipful Company of Arbitrators, March 2022 [5] ibid [6] [2022] EWHC 1512 (Comm)

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