oct ewj 24 online - Flipbook - Page 23
Mediation documentation
Mediators are not enamoured to receive the result of
a blanket photocopying exercise (sometimes in duplicate), in particular the historical chaff between the parties as the case progressed (‘please reply to our email
of X’). It can indicate failings in case management on
the part of a representative, and always puts the mediator to wasted time in having to pare out duplicate
and/or immaterial communications before being able
to identify the material issues between the parties.
day to ascertain the extent to which the parties and/or
their representatives are familiar with the mediation
process, and in particular whether there are any particular sensitivities. It is always good practice to again
give the assurance that anything that passes in that
conversation is confidential. In particularly large and
complex cases there can even be pre-mediation meetings aimed at ensuring that progress on the day is as
swift as possible.
It is therefore suggested that the parties should work
together to produce:
1. An agreed statement of facts: this should be wholly
uncontroversial, brief, and aimed at getting the
mediator up to speed on the core issues and current
position in the dispute.
1. That the party concerned has been advised as to the
nature and content of the mediation agreement and
will be prepared to sign it.
Of particular importance is confirmation:
2. That the party concerned does have authority to
enter into a settlement agreement or (frequently the
case when dealing with insurers or large companies
and there is a limit on the authority) has access to
others who are able to confirm such authority.
2. An agreed bundle: this need not be a thing of
beauty, and should only contain key documents and
items of correspondence: for example material Protocol letters and any previous offers. If complete
agreement cannot be reached (it seldom is) then the
parties are always free to supplement the bundle with
other items (sometimes for the mediator’s eyes only).
3. Of the identity of those attending the mediation and
that they will sign and be bound by the confidentiality
provision.
4. Of the arrangements made for refreshments, and
whether there are any material time or other restraints.
3. Separately, their position statements. These are not
skeleton arguments as for a trial or appeal, should
never or rarely be more than 10 pages in length, and
should be pitched at getting the mediator and the
other party to understand what they regard as
relevant and what they regard is needed.
As mentioned above, the second part of this article will
look at the dynamics of the mediation day itself.
Author
Peter McLoughlin
Peter McLoughlin is an experienced solicitor
mediator, accredited with CIArb, CEDR and ADR
Group and is a member of a number of panels.
Prior to the mediation day
A mediator should always contact the parties, usually
by way of their representatives, prior to the mediation
Mr Keith Borowsky
Trauma and Orthopaedic Surgeon
specialising in Shoulder )& Elbow Surgery
MBBcH (Wits), F.C.S. (Orth.), M.Med. (Orth.)
Dr Ray Armstrong
Consultant Rheumatologist and Hon Clinical Senior Lecturer
MB BChir MA FRCP
I have over 35 years’ experience as a Teaching Hospital Consultant Rheumatologist
and retired from this position in early 2024. I remain in active clinical practice
however, working part time in Guernsey. My professional interests have included the
application of IT to healthcare and education. I was a committee member for NICE
for 10 years and worked for NHS Evidence.
Mr Keith Borowsky is a Trauma and Orthopaedic Surgeon who has been
practising orthopaedics for over 37 years, including 33 years experience
as a consultant. Following 15 years as a Substantive Consultant at
I have been preparing reports as an Expert Witness for more than 25 years.
I undertake clinical negligence reporting frequently. My expertise includes
inflammatory arthritis (rheumatoid, lupus, gout and ankylosing spondylitis), soft
tissue rheumatism, fibromyalgia and chronic fatigue syndrome, whiplash, chronic
pain syndromes (including CRPS), work-related disorders (including RSI) and
spinal pain.
Medway Maritime Hospital, his current main activities and positions are:
1 CONSULTANT ORTHOPAEDIC SURGEON at The Spire
Alexandra, Kent Institute of Medicine and Surgery (Kims) ,
2: DIRECTOR SUBOW LTD A company involved in research into
shoulder replacement for fracture and implants for other upper
In addition to solicitors I have prepared reports for NHS Resolution, MDU, Medical
Protection Society and MDDUS as well as the GMC.
limb problems.
3: MEDICO- LEGAL CONSULTANT with a combination of
My work is apportioned approximately as follows: Claimant 55%, Defendant 40%
Joint 5%. I have given evidence in Court on a number of occasions. I act in accordance
with the guidance "Acting as an expert or professional witness - Guidance for
healthcare professionals", which is endorsed by the Royal College of Physicians of
London and is consistent to the standards and guidance of the General Medical
Council.
personal injury and negligence work. Mr Borowsky has been involved
in medico-legal reporting for over 28 years, undertaking personal
injury, road accident and medical negligence reports. He also offers
diagnostic and rehabilitation expertise on existing upper limb cases
where the prognosis and future treatment is unclear.
Mobile: 07826 559296
Email: rayarmstrong@btinternet.com
Alternate Email: rayarmstrong@outlook.com
Pound House, Spearywell, Mottisfont, Romsey, Hampshire, SO51 0LS
Area of work: Nationwide
EXPERT WITNESS JOURNAL
Contact: Keith Adrian Borowsky
Tel: 01634 662812
-
Email: kesujeca@gmail.com
Spire Alexandra Hospital
Impton Lane, Walderslade, Chatham, Kent, ME5 9PG
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