Posted on 28th September 2022 by Chris Makin

Is There No Limit To The Powers Of Mediation?

A few years ago we saw the funeral of brave Alfie Evans, the terminally ill little boy of 23 months who died despite a campaign to have him treated in Italy, supported by no less an advocate than the Pope, and whose parents had taken his case right up to the European Court of Human Rights. One cannot but be moved by such a tragic case.

Now, I’m just a humble chartered accountant and commercial mediator, and not a social campaigner; but even I recognise the heart-wrenching dilemma of parents who seize every chance of life for their beloved children.

The previous similar case was that of Charlie Gard where, again, parents had to fight it out with the medical profession through the courts and where, again, they lost, and Charlie died. But the words of The Hon Mr Justice Francis in the High Court stage of that fight are illuminating, since they include a plea for mediation to be used even in a case such as this. The emphasis is mine:

(20) Fourthly, I want to mention, again, the subject of mediation. Almost all family proceedings are now subject to compulsory court led dispute resolution hearings. This applies in disputed money cases, private law children cases and in all cases involving the welfare of children who might be the subject of care proceedings. I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parents of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it, would in my judgment be of benefit and I hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee.”

So his Lordship did not expect that mediation would necessarily achieve a bridging of such disparate views, but he saw great value in the understanding of different viewpoints which it could bring.

So too in the commercial cases which I often mediate. Very few of them fail to achieve a settlement but, even with the small number which don’t see an end to the dispute on the day, there are advantages.  There may be a settlement soon afterwards when the parties realised they were not so very far apart; what is learned at a mediation, although being without prejudice, can help to craft a persuasive Part 36 offer; and, even if all of that fails, you will have seen the whites of the enemy’s eyes and counsel can plan their advocacy and cross-examination accordingly.

But the fact is that mediation, being so powerful, really can achieve a settlement in the most difficult circumstances. I always hold a joint meeting at the start, even with parties who at first refuse to sit in the same room as their enemy; and it is surprising just how often such an unpromising start does lead on to settlement. And why not? Where, as so often is the case, the future legal costs to trial are likely to be more than the claimed amount, what possible sense can there be in fighting on?

Going back to heart-breaking medical cases, another infamous case – which again featured Alder Hey Children’s Hospital – was the one where a consultant had been retaining the organs of deceased children “for research” without their parents’ permission, so that hundreds of parents had buried their children without knowing that they were incomplete. That most heart-wrenching case went to mediation.

Now, it is often said that the parents and other relatives of loved ones who had received negligent medical care want, above all else, two things: an apology, and assurance that others will not suffer in the same way.

The Alder Hey mediation achieved those things. The hospital apologised – something which in litigation could have been construed as an admission of liability. The offending consultant had long since left, and procedures were put in place to retain children’s organs for research or organ donor purposes only after the parents’ informed consent had been given. And then, at the hospital’s expense, a peace garden was established, in memory of all those little children who were with the angels but in incomplete bodies.

Mediation is a wonderful process. If there really is a limit to its power, I haven’t found it yet.

If you have any questions about mediation and how it works, visit our Mediation Frequently Asked Questions page.

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