NHS Resolution has added a second costs provider to its mediation panel as it looks to increase its activity in this area, with research showing that it has had little take-up to date.
Following a “highly competitive retender” process that saw the three existing panel members reappointed, St John’s Buildings Limited will joins Costs ADR in mediating costs disputes; the Centre for Effective Dispute Resolution (CEDR) and Trust Mediation will continue to mediate personal injury and clinical negligence claims. They will all be paid on a fixed-fee basis.
The claims mediation service was originally launched in December 2016 and has since successfully mediated more than 1,000 claims made against NHS organisations. But an evaluation of the scheme published by NHS Resolution earlier this year – though very positive about the impact of mediation more broadly – said there had been “very low take-up” for costs disputes, with only 22 completed mediations between December 2016 and 31 March 2019.
It said: “These low figures may be attributable in part to the recovery of the costs of mediation. Under the service, in contrast to mediations for substantive issues such as liability and quantum, the legal costs associated with the mediation are not recoverable for the mediation of costs disputes. Each party will share the costs of the mediator’s fees equally and will bear their own costs of preparation for and attending the mediation.”
The report continued that, while there was a place for mediation for high-value and complex costs disputes, traditional ‘without prejudice’ discussions on the telephone or by a roundtable meetings have also proven to be effective in resolving costs disputes.
“The experience of NHS Resolution is that the parties find these processes often to be more conducive to settlement compared to the formal mediation approach where the structure is managed by the mediator.
“Unlike mediations of substantive issues, costs mediations will usually only involve the parties’ legal and costs teams, and are limited to discrete costs issues and the ‘non-tangible benefits of mediation’ are not a key feature of the mediation of costs disputes.”
Nonetheless, NHS Resolutions said it wanted to continue with specialist costs mediation. In line with “the desire of the market for more flexible ADR processes to resolve costs disputes”, it was exploring different initiatives to circumvent the delays in the current costs assessment process to target the resolution of costs claims as quickly as possible from settlement of the main action.