With South Africa’s court system increasingly burdened by lengthy delays, the South African Law Reform Commission (SALRC) is rightly exploring mediation as a potential solution to these continuing challenges, writes Ulundi Behrtel BLC, LLB, head of delivery services (case and claims handling) – South Africa, Medical Protection.
However, it is critical that amendments are made to the draft Mediation Bill.
Behrtel writes:
Mediation is a cost and time-effective alternative dispute resolution method that facilitates early settlement of disputes. It encourages parties to engage in structured negotiations, with the assistance of a neutral mediator, to reach a mutually acceptable outcome.
By promoting an amicable resolution outside formal litigation, mediation also serves to alleviate pressure on the judiciary, enabling courts to focus their resources on matters that truly require judicial adjudication.
Noting these benefits, the SALRC has developed a draft Mediation Bill, which aims to formalise mediation as a mandatory and structured step in civil litigation for certain areas of law, including medical negligence. If adopted, the draft Bill would require parties to engage in alternative dispute resolution before proceeding to trial.
Medical Protection supports the Bill’s overarching goal of promoting mediation as a means to resolving legal disputes more efficiently and alleviating the growing pressure on South Africa’s overburdened courts.
But we do have a range of serious reservations.
Medical negligence claims are uniquely complex and pose significant reputational and professional risks for healthcare professionals if not dealt with appropriately. As such, it is essential that any mediation process involving such claims includes robust safeguards to ensure fairness where the rights and interests of all parties are protected.
Medical negligence claims are also not well suited to the timelines and processes currently envisaged in the draft Bill.
To address this, we have recommended protocols specifically tailored to medical negligence claims as well as exceptions where appropriate.
In addition, it is important that professionally trained, qualified and accredited mediators with specialist knowledge and significant experience in medical negligence are appointed to complex medico-legal cases to ensure both the effectiveness and fairness of the mediation process.
Further, CPD requirements for mediators handling such claims should be mandated to ensure they possess not only core mediation competencies but also a foundational understanding of the relevant medical and medico-legal issues.
There must also be clear guidelines on exemptions outlining when mediation may be deemed inappropriate or, in some circumstances, bypassed.
Done correctly, mandatory mediation in medical negligence claims has the potential to offer real benefits. It can help resolve disputes earlier, saving time, money, and emotional strain for all parties involved.
It may also increase the likelihood of settlement and reduce the burden on the courts, crucially achieving its aim of freeing up judicial resources for cases that really do require formal adjudication.
Yet, as outlined in this article, significant changes to the draft Mediation Bill and adequate resources are needed if mediation is to be effective in complex medical negligence cases.
Medical Protection remains committed to working with the SALRC and other stakeholders to shape legislation that is not only fair and effective, but truly meets the needs of healthcare professionals and patients alike.
See more from MedicalBrief archives:
MPS supports Mediation Bill, but urges training and clear rules
Mediation saves Gauteng Health R2.2bn in medico-legal cases