The Irish section of GEMME had an event under the title "Mediation in Medical Negligence and Catastrophic Injuries" on Tuesday 28 February 2023. Below is a brief summary of the event, which was attended by over 100 people, either at the Bar Council of Ireland in Dublin or online.
• Ernest Cantillon, Litigation Solicitor and Managing Partner
• Sara Moorhead, Senior Counsel (SC) and Accredited Mediator
• Mr Justice Kevin Cross, retired judge of the High Court and Head of Personal Injuries Division
The event attracted a large online audience in addition to a strong in-person attendance. Ms Justice Marguerite Bolger (Chairperson, GEMME Ireland) provided a stimulating introduction to the event in her welcoming address and emphasised the important role of mediation in litigation. Ernest Cantillon outlined the merits of mediation in medical negligence and catastrophic injuries cases. However, he reminded the audience that mediation may not be the best way or most appropriate way to ensure that justice is served in some specific complex cases. He also expressed the view that some medical negligence cases need publicity so that the errors which gave rise to the action can be avoided in the future. His view is that in such cases, mediation could prevent the errors being highlighted publicly and possibly inhibit their prevention going forward. He was also of the view that mediation at a later stage in the litigation process had a much better chance of success. He referred to the need for further research in Ireland to explore the pros and cons of mediation in litigation. The plaintiff, in his view, needs to be happy with both the mediation process and the outcome. He emphasised the importance of consent of all parties to mediation and the voluntary nature of engagement. He added that mediation is not always the cheapest way to resolve a case; mediation services come with a cost.
Sara Moorhead, SC, spoke of the importance of having papers in advance in order for the mediator to prepare effectively for mediation. In smaller cases, she argued that it is better that parties do not see each other’s papers. Ultimately, management of mediation is a matter for the mediator and the parties. She pointed to the importance of the plaintiff being afforded considerable time before the defendant comes in. Timing however, depended on the type of case. She also highlighted the importance of parties having confidence in the mediator and that confidentiality throughout the mediation process was of immense importance. She believed that parties should decide whether plenary sessions would be useful or not. If parties wanted their day in court, notwithstanding best efforts of all involved, then that should happen. However, she also pointed out that in many cases where mediation was unsuccessful, the cases were ultimately resolved through negotiation with the outcome of mediation feeding into the final settlement.
Both speakers and the event Chairperson, drawing from their extensive expertise and legal experience, provided engaging examples of mediation in their practices and the benefits that accrued to both parties alongside some of the challenges around mediation in medical negligence and catastrophic injuries cases. Mr Justice Kevin Cross drew the attention of the audience to a number of important points made by the speakers including the view that mediation may not be appropriate in all cases, that timing and the voluntary nature of mediation were of critical importance and the positive impact that an apology or an expression of regret can have for the injured party in catastrophic injury and med neg cases. An engaging Q & A followed the presentations.
Sara Moorhead is a Senior Counsel and a CEDR Accredited Mediator. She is primarily a trial lawyer/courtroom advocate. She has extensive expertise in the areas of Judicial Review, Personal Injuries, Administrative and Contract Law, Medical Negligence, Professional Negligence, Insurance Law, nonjury, Asylum and Immigration law. She has represented the Government in proceedings before the European Court of Justice. She has also advised the Office of the Parliamentary Legal Adviser and acted as Legal Counsel in a number of Tribunals of Inquiry. She is the Bar Council representative on the Legal Services Regulatory Authority which will govern the Bar of Ireland in the future.
Ernest J. Cantillon is Managing Partner, Cantillons Solicitors, Cork and has been involved in many ground-breaking precedent setting cases. He lectures extensively on litigation and litigation-related issues.
Moderator will be Mr Justice Kevin Cross, Retired judge of the High Court