Clinical negligence claims are stressful, costly and time consuming. Moves towards mediation instead of litigation are to be welcomed, writes Dr Tony Behrman, medico-legal business consultant at Medical Protection (MPS).
Being the subject of a clinical negligence claim can be a stressful experience for any healthcare professional. Additionally, it is often time consuming and costly.
Going through the litigation process can be unnerving for both doctors and patients. It can lead to stress and anxiety as well as financial hardship and even reputational damage. In contrast, mediation works towards a conciliatory outcome rather than a combative one and can help to reduce the impact on doctors involved in clinical negligence claims as well as patients. Mediation is now being used in many countries around the world, as well as in South Africa, to resolve disputes, and is seen as a more attractive alternative. While mediation can’t guarantee the avoidance of conflict, it does aim to bring disputing parties together in agreement.
The use of an unbiased and impartial third party as mediator means that they will not impose their views on either party and will not try to enforce an outcome, but rather facilitate both parties to find their own solutions. Mediation works by bringing together hospitals or healthcare practitioners and potential claimants to discuss their case. It can take place whether or not court proceedings have begun. All discussions that take place are subject to a strict code of confidentiality.
Mediation typically involves an initial open joint discussion and then individual confidential private sessions, looking into exploring the interests of each party, followed again by joint discussions where options may be generated. Mediation usually lasts, usually over one or two days.
Open sessions involve all parties, whereas private discussions are attended by just one of the parties and the mediator. The latter then shuttles between the 2 parties attempting to find common ground, enquiring of each party how they reflect on the evolving situation, assisting the 2 parties to edge closer together by carrying messages and offerings from one party to another with the consent of the parties, and offering reality checks when an impasse is reached. The skill of the mediator is to estimate the fall-back position of each participant and attempt to avoid reaching an unrealistic end point between the parties but look rather for a win-win outcome.
The skill of the mediator rests with separating the persons from the problem and the positions form self-interests
The day should be planned in a way that allows for constructive dialogue. Until an agreement is reached by both sides, either party is free to leave the process at any time. Once an agreement is reached it is made legally binding by putting it into writing and signing it.
Mediation deals with the needs of both parties rather than rights, and in that sense, is therefore facilitative and not adjudicative. A skilful mediator can identify the real issues at the heart of the dispute, which are not usually identified in court documents. Mediation is a process that takes place away from open court and usually in a safe environment, putting both parties in the dispute at the centre of the process.
One of the most powerful outcomes of mediation is that a patient can receive an apology or an acknowledgement that harm has been caused. As the process is conducted in private meetings, it is bound by confidentiality, and it allows the doctor to offer an explanation which would not be possible in court. Additionally, because an apology or acknowledgement is given privately, it is not an admission of guilt.
The proceedings of mediation are accompanied by minimal note keeping and the process is privileged from being raised in a court of law. The process can be cathartic to doctors who wish to apologise and patients who feel they deserve an apology.
Mediation is welcomed by Medical Protection as we have experience of mediation across our caseload and we would particularly like to see mechanisms put in place that facilitate the early resolution of claims.
The most obvious advantage is the speed with which mediation can be convened and concluded.
“If anything, the case for mediation is even stronger in South Africa, where access to justice is out of the reach of most citizens and many businesses”, according to the Department of Justice and Constitutional Development (DoJ&CD)
They list numerous potential benefits of choosing mediation:
• It offers speedy resolution of disputes
• It is considerably cheaper than litigation
• It provides a win-win situation for both parties in a dispute
• The process is flexible and avoids technicalities
• It is a voluntary process
• It promotes reconciliation
• Parties can use their own languages.
For the reasons listed above, the DoJ&CD’s Rule Board is taking mediation seriously and, at the end of 2018, invited stakeholders to comment on a draft proposed rule 41A on mediation.
Essentially, this new rule regulates the procedure for referral of High Court cases to Court Annexed mediation, but will also require South Africans to consider mediation before heading to court in the first place. Every new action or application must be accompanied by notice, indicating whether the party agrees to or opposes referral of the dispute to mediation. The notice must set out clearly the party’s reason for believing that the dispute is or is not capable of being resolved by mediation.
Medical Protection submitted a detailed response in February 2019, generally welcoming this proposal – we favour the approach taken that the rules are not too prescriptive to ensure flexibility, however we called for specific reference to the allowance of representation of parties at mediation proceedings to ensure there is no uncertainty. Another consideration is whether the rules should provide for a standard mediation agreement/template which Medical Protection deems preferable to ensure consistency.
The Rule Board has taken stakeholder comments into account and submitted the Rule to the Minister who will approve it, potentially next year. Medical Protection is keen to see this new rule on mediation implemented as it may have a positive impact on the way many disputes are resolved. More mediated cases will not only reduce cost, but by avoiding litigation and court appearances, which can often be drawn out, patients, their families and healthcare professionals all benefit.
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