Professor Cam Wareham LLM FCIArb explains why arbitration is attractive to pharmaceutical organisations, and why neutrals with a medical background are well-suited to alternative dispute resolution (ADR).

Cam readily admits that he and his peers are ‘rare’ – there aren’t many arbitrators who have a medical science background. “It requires a shift in direction and interest away from direct patient care and into disputes and law,” he explains. Despite their rarity, Cam believes that medical professionals such as clinicians and medical scientists are well-suited to dispute resolution as they tend to be academic, pragmatic, and socially-conscious with a healthy dose of ‘commercialism’. The ability to analyse large amounts of complex data, quickly sifting through the material to discern what is relevant is also an important skill they possess.

“Doctors are great at dealing with people in all facets of life,” Cam notes. Clinicians are as well-suited to mediation as they are to arbitration, and he sees a significant advantage in the addition of a medical scientist or clinician to inter-disciplinary disputes of a life science or healthcare nature. “Just as lawyers trust lawyers, doctors and scientists tend to trust doctors and scientists.”

Specialist skillsets within the arbitral panel are becoming increasingly important as claims become more technically demanding and legally complex. Possessing both skills makes for a more efficient and technically safe decision .”We see some interesting ‘tactics’ being employed in order to confuse the neutral in some disputes, often playing on a perceived lack of subject matter knowledge. That simply doesn’t happen when the arbitrator is both legally and medically trained,” he elaborates.

Career shift

Cam’s route into arbitration is an unusual one. After undertaking a medical degree in New Zealand, he moved to the UK to follow his passion for surgery. After stints teaching at Durham and University College London (UCL), he became an NHS surgeon in London and East Anglia. During his time as a head of department, he developed an appreciation of the disputes which frequently arise within the healthcare space. ”I became aware of disputes occurring between providers of care, users, hospital systems, pharmaceutical companies, research companies and medical device manufacturers – as a clinical lead I often became involved in providing expert opinion or evidence. It was different to the ‘day job’ but something I began to enjoy.”

"As I learned more about law, dispute resolution, contract negotiations and performance and mediations with providers and teams, I became well-known as a ‘go-to’ opinion amongst my peers and later amongst the wider profession. However, I quickly learned that, while I knew the technical aspects of the subject matter, I needed to know more about the legal principles which underpinned them,” he admits. He embarked on a law conversion course.

His career took a turn when he was offered a professorship in Australia at the University of Western Australia (UWA). "My position allowed me to branch into teaching medical law to medical students. Having worked closely with teams developing new techniques, drugs and heading research partnerships, my interests widened from issues of clinical negligence into the world of intellectual property (IP), breaches of research partnership agreements, delivery issues and design flaws and protection of secrets. It gave me a different perspective about the issues which can come up in life science and healthcare law.”

His interest in medicolegal issues saw him appointed to a number of roles within the medical profession many of which concentrated on disciplinary matters. While these were often interesting and necessary, Cam wanted to concentrate on developing a dispute resolution practice with an interest in the healthcare and life sciences. Having an LLM in International Arbitration and Dispute Resolution from the University of Aberdeen assisted greatly. ”I was able to qualify in international arbitration and mediation, becoming a Fellow at Ciarb as well - a pivotal point in my career direction. The knowledge gained during that time was immense and allowed me to gain the skills needed to undertake and conduct arbitral proceedings with confidence.”

Cam now combines a career as an arbitrator and mediator with a professorial role in the Faculty of Law at The University of Sunderland. “It allows me to contribute to the broader ‘thinking’ of where dispute resolution can assist these types of disputes, while also practicing in the area. While I practice independently, I’m fortunate to do that with the support of Chambers,” he says. ”I am fortunate to have a number of fantastically talented and experienced colleagues at ArbDB Chambers. People I can reach out to for advice if needed, because we are professionally diverse, there aren’t many areas of practice that Chambers doesn’t cover.”

Mediation

"It’s helpful to look at medical ADR as a slightly wider application of the dispute resolution toolbox," explains Cam. "There are disputes between patients and clinicians, which are managed in a specific way – and then there is everything else.”

Clinical disputes between patients and clinicians are well-suited to discussion-based ADR. “Mediation, whether that be facilitative or more evaluative, tends to be an accepted option amongst many, including big health systems such as the UK NHS. This is especially more so with proposed changes to the civil procedure rules post Churchill, which place ADR and mediation at the forefront of clinical dispute management. Rather than mediation being a ‘tick box’ afterthought, Courts expect litigants to have made significant efforts to resolve their differences well before trial,” he notes. ”While it may not be welcomed by all, counsel to clinical negligence will need to build meaningful ADR attempts into their strategy at an early stage. I see this as good for both the claimant and the respondent.”

He stresses that mediation should be facilitative, but the neutral should be able to reality-check parties’ position. Clinical disputes can have numerous heads of claim, and neutrals need to be able to sort through them and discern which ones are relevant – and which ones aren’t.

However, Cam suggests that there is the feeling that many disputants would like to see a more ‘evaluative’ approach taken by the mediator. He says, ”A mediator’s role is not to resolve the dispute but rather facilitate the resolution. In clinically complex cases, that requires the mediator to be ‘brave’ in reality-checking the position of the parties. Where ‘medical mediators’ come into their own is where that reality-check comes from a place of significant and deep knowledge of the technical aspects of the subject matter.” He explains that  discussions and agreements are ‘without prejudice’ and may not always lead immediately to settlement at the time. “However, where parties are aware that the mediator has both a medical degree and a law degree, their ‘reality-checking’ questions will likely provide a strong indication that running a particular argument might not be successful.”

Cam predicts clinical disputes may evolve to include a more evaluative approach. ”I suspect we will see more from the ADR toolbox in the future. Dual-trained (medico-legal), evaluative ADR professionals are likely to employ expert determination options or early neutral evaluations, allowing the claim with less merit to be disposed of earlier and more efficiently. In order for that to happen though, more people from non-law professions will need to be mobilised.”

Mediation in clinical disputes is taking off, he explains. “Mediation allows parties to have their voice and say what needs to be said. An apology is often as important as compensation in clinical disputes,” notes Cam. “From experience, most clinicians are mortified that something has gone wrong. They’re upset, but in the litigation process they’re frequently prevented from saying anything about it,” he continues. In mediation, the clinician can be provided the option to explain what happened – and why.

“Most patients don’t see a claim as a way of making money; they just want to get on with their lives and to do that they need things paid for – like another operation. What they want is for things to not happen again – lessons to be learned. Sometimes the doctor will need to undergo retraining, but on many occasions, it’s a ‘systems failure’ which has resulted in harm. Whatever the reason, patients appreciate hearing an explanation, an expression of remorse and knowing that things will change as a result of the action they have brought,” he continues.

Life sciences

At the other end of the spectrum are the life sciences, in which disputes tend to have more money at stake, projects have significant up-front costs, and the lead-in time is significant. Many biotech or pharmaceutical disputes are contract-based, highly confidential and technical. Arbitration provides the advantage of confidentiality, the ability to choose the arbitrator who understands both medical science and the law and, of course, finality and enforcement of the award. Companies are frequently multi-national and cannot rely on their matter being heard in one jurisdiction – so international arbitration becomes attractive.

“What is often important to the parties is avoiding court,” explains Cam. “Life science disputes are frequently contract and IP-based. They're often layered but in the background is the ever-present need to protect commercially sensitive trade secrets and strategy. That's why arbitration fits these types of dispute so well. Going to national courts risks the production of a public record. Any competitor could easily discover what's going on between the parties and exploit that information to their own gain.”

While the volume of life science disputes are not presently significant, they tend to be high-value, challenging and sensitive. They necessarily require neutrals who understand the technical aspects of the case. Cam explains life science disputes frequently involve a number of partners, may be heavily centred around technical aspects of medicinal or biotech development and may concern disputes which cross issues of contract, IP and special areas such as academia. ”It requires an arbitrator who can cross multiple disciplines and subject areas, who can understand and confidently process volumes of information in order to deliver a safe (legally and technically) and effective award,” he says.   

“A lot of biotech or biomedical manufacturers and partners have closely guarded secrets. They naturally want discussions and hearings to be held in private, before a panel who understands what the matter is about, with a set of rules and that they choose, in a jurisdiction with laws which assist arbitration and will enforce its award” explains Cam. “An arbitrator who is both medically and legally trained is of great value. They understand the science as well as the law and process of dispute resolution. What that means is less time, less money and confidence that the decision is likely to be safe.”

Professor (Dr) Cam Wareham LLM, FCIArb is based in London at ArbDB Chambers, arbitrating and mediating disputes across a number of areas with a special interest in the life science and healthcare sectors. He has vast experience in supporting the litigation of clinical negligence and regulatory matters, in addition to sitting as chair on a number of disciplinary panels. Cam is a Professional Conduct Peer Review Panel member of Ciarb, supporting its role in maintaining high professional standards in dispute resolution. He has built a substantial presence within his specialist area of practice and is well-known for his advice in management of clinical and team disputes, having completed his Doctoral thesis on practitioner behaviour related to patient management.

Following his formal legal education, Cam has transitioned into an academic legal position, in which he focuses on dispute management within the Healthcare and life sciences sectors. He has an international focus having worked in the USA, Australia, New Zealand and the UK. In addition to his experience in the litigation of clinical issues, Cam is familiar with the arbitration and mediation of disputes arising from failed life science partnership agreements, contractual disputes related to milestones in drug or product development, product failure, supply chain disputes, research and development deliverables in the Biotech and MedTech industries and regulatory responsibility of the same. He is on the World Intellectual Property Organization (WIPO) and International Chamber of Commerce (ICC) panels amongst a number of others and is a Fellow of the Arbitrators and Mediators Institute of New Zealand. Cam is a member of the American Bar Association (ABA) and the American Healthcare Lawyers Association (AHLA). In addition to the more specialised areas of practice, Cam also maintains a general dispute resolution practice and enjoys conducting mediation and arbitrations for consumer and business dispute schemes. He is passionate about research and education, contributing to the thought leadership and knowledge through his Professorial position in the Faculty of Law, The University of Sunderland.