With the burden of medico-legal litigation, both in the public and private healthcare sector, increasing, the Health Minister recently hinted that medico-legal disputes should be dealt with differently.
Mediation, write Donald Dinnie, director, and Lisa Kriegler, associate at Norton Rose Fulbright South Africa Inc, is a logical option and could work if done properly, and might well lead to a more satisfying resolution for both parties.
They write:
High court litigation is only one of the options available to parties wishing to resolve a dispute, with mediation having been floated as a possible alternative mechanism for years. Even parties litigating in court are required in terms of Rule 41A to consider mediating the dispute before throwing themselves into years of litigation
The idea of mediating a medico-legal dispute is sound, being more flexible, speedier and more affordable than litigation, with the parties attempting to resolve the dispute by agreement. The option also offers agreed remedies outside what a court can order, like an apology, further corrective treatment, or payment of future medical aid bills in lieu of a lump sum payment.
Mediation favours negotiation and compromise and can lead to more satisfactory results for both parties.
However, despite the benefits of mediation, and although Rule 41A has been part of the Uniform Rules of Court for years, mediation is not widely used, and delivering a Rule 41A notice has largely been treated as a tick-box exercise for both plaintiffs and defendants that does not lead to mediation.
It’s an option that may not always be possible or practical, particularly in complex cases requiring expert evidence to determine issues of negligence and causation. Even in simple cases, because mediation is voluntary, both parties must agree to mediate and be committed to the process lest negotiations be derailed or reach an unnecessary stalemate.
Mediators do not make orders or find in favour of one party or another. So, if the parties cannot reach agreement on their own, the dispute will remain unresolved and the cost of the mediation would be wasted.
What is discussed during a mediation is confidential and cannot be disclosed to a court in any litigation that may follow. However, because parties are encouraged to be frank and open with one another, they run the risk of revealing information that may benefit their opponent if they do not reach agreement and the dispute proceeds to litigation.
Despite these risks, it remains a useful tool in resolving disputes and there is no reason for parties involved in the dispute not to consider it. Expert mediators can find ways to help the process run smoothly and result in a compromise with which both parties can live.
Before mediating, the parties should prepare and sign a mediation agreement setting out who will bear the costs of the mediation, any deadlock breaking mechanisms, the effect of any agreement reached during the mediation, and if and how the agreement will be enforced (for example, the agreement can be made an order of court).
The process must be facilitated by an experienced mediator. Although it is not essential, as the mediator serves only to facilitate discussion, it would be useful for the mediator to have some knowledge of the medical aspects of the dispute.
Perhaps most importantly, both parties must be committed to the mediation process and not just treat it as a tick-box exercise.
Other jurisdictions are already enforcing mediation in certain circumstances (particularly for smaller claims) with sanctions being imposed on parties that fail to attend compulsory mediation. The UK, for example, allows a litigant’s claim to be dismissed or costs forfeited if they do not attend a compulsory mediation or make an effort to reach an agreement during the mediation process.
Mediation can be cheaper, quicker, and more effective than litigation if it is done properly. It remains to be seen whether compulsory mediation will be enforced in the public sector, but there is nothing preventing private hospitals and doctors from including terms in their admission and treatment forms requiring a patient with a dispute to attempt to mediate (or even arbitrate) before issuing summons.
Donald Dinnie – Director at Norton Rose Fulbright South Africa Inc
Lisa Kriegler – Associate at Norton Rose Fulbright South Africa Inc
See more from MedicalBrief archives:
Is mediation a better option in medico-legal disputes?
Mediation saves Gauteng Health R2.2bn in medico-legal cases
Retired judge urges mediation for SA medical negligence claims