Mediation is often ‘cathartic’ in catastrophic injury cases, but it shouldn’t be forced, experts say – The Irish Times

Many plaintiffs in catastrophic injury cases find mediation “cathartic” and the vast majority of such cases are resolved through such intervention, a seminar told a seminar hosted by a judge-led organization.

Attorney Ernest Cantillon, whose practice specializes in medical negligence litigation, stresses that mediation must be voluntary and courts should not pressure litigants, such as warning of potential legal costs if they choose not to mediate.

The constitution requires that justice be administered in public courts, and “a private parallel system of justice” cannot be established without the consent of the litigants, he said.

More than 90 percent of personal injury cases are settled before a judge, and the fact that court lists are under intense pressure should not be a basis for ordering mediation, he said.

Voluntary mediation is an “excellent” way to resolve complex cases, and he believes it works best when done in conjunction with court proceedings.

Judge Cross was “not convinced” that mediation was always the best solution in cases of medical negligence and found that it had not worked in Vicky Phelan’s case

Mr Cantillon, Senior Counsel/Mediator Sara Moorhead, High Court Judge Marguerite Bolger and her retired colleague Mr Justice Kevin Cross, all agreed mediations should not be forced on the parties.

All four spoke at a recent seminar in Dublin on mediation in catastrophic injury cases. It was organized by the Irish branch of GEMME, a judge-led European organization dedicated to promoting mediation in litigation.

‘Unconvinced’

Judge Cross, who chaired the event and managed the High Court’s personal injury list for several years, said he “totally agrees” with Mr Cantillon that mediation must be voluntary to be legitimate and successful.

He was “unconvinced” that mediation was always the best solution in medical negligence cases, noting that it hadn’t worked in the case of Vicky Phelan, the cervical check activist, since her death and whose case ultimately ended at 2, 5 million euros was settled.

The courts are there for the people, and the best way to keep litigation costs down is to get the parties to court “as quickly as possible,” without unnecessary pre-trial applications and court case management, he said.

In his speech, Mr. Cantillon said that the cost to the plaintiff in the event of a successful mediation is the mediator’s fees, which range from €5,000 to “multiples” of that in more complex cases. Failed mediation can add “significant” costs to the court process, as in addition to the mediator’s fees, there are about €20,000 or more in fees for a lawyer and fees ranging from €25,000 to €100,000 for a senior counsel in a complex mediation.

Plaintiffs have an obvious interest in receiving catastrophic injury compensation, but funding isn’t the only consideration, he said. There is often “great emotional distress” about how the injury occurred and its aftermath, and patients or their family members want to know “what happened, why it happened, and some reassurance that it will not happen again.” “.

In mediation, the plaintiff can request a visit from the doctor responsible for the error, he said. This can be “cathartic,” but mediation can lack a sense of a wrongdoer being held accountable in a public forum, and some people want their day in court.

His experience is that mediation at a later stage in the court process has a much better chance of success. He acknowledged that legal costs are “much higher” at this stage.

The whole process would be significantly aided if ‘meaningful’ countermeasures were provided at an earlier stage. Introducing advance protocols here could facilitate earlier mediation, he added.

“Very tragic”

In her speech, Ms Moorhead said her personal view was that mediation was “a far better” forum for catastrophic injury cases than court proceedings, particularly where liability is involved.

Telling their stories is very important to the plaintiffs, she said. Many are “very tragic”, many have struggled for years with “very limited” support from the state and are in a situation where, no matter how much money they get, they will be left with a very disabled child, she said.

Some plaintiffs are more “embittered” than others and many appeared to have little support from the healthcare system, such as B. Advice to have

Whichever way you look at liability issues, the parents are “admirable,” Ms Moorhead said. Such mediations require “great finesse” and life expectancy is a particularly difficult issue.

It is very important that families understand the issue and they “should not be patronized”.

Apologies are very important to many plaintiffs if they can be given, she said.

Some plaintiffs prefer privacy, others want the public apology, and some want their day in court, she said. Some plaintiffs are more “embittered” than others and many appeared to have little support from the healthcare system, such as B. Advice to have.

In recent years, she has found a willingness to come to mediation in a “meaningful way” and not treat it as “a box-ticking exercise,” Ms. Moorhead added.

At the conclusion of the seminar, Ms Justice Bolger, a member of GEMME, who conducted many mediations prior to her appointment to the judiciary, said that in her opinion there is no situation that does not benefit from mediation. “Even unsuccessful mediation can help to resolve a legal dispute.”