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. Dr Tony Behrman, medicolegal business consultant at Medical Protection, looks at the benefits of mediation and some recent related developments.

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, including 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 finding 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.

The process of facilitated mediation

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 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 two parties attempting to find common ground and edge closer together by carrying messages and offerings with the consent of the parties, and offering reality checks when an impasse is reached. The skill of the mediator is to estimate the fallback position of each participant and attempt to avoid reaching an unrealistic endpoint between the parties, instead looking for a win-win outcome.

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 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. We would particularly like to see mechanisms put in place that facilitate more early resolutions of claims.

The benefits

The most obvious advantage is the speed with which mediation can be convened and concluded.

The Department of Justice and Constitutional Development (DoJ&CD) 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.

Latest developments

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 it 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, but 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 drawn-out litigation and court appearances, patients, their families and healthcare professionals all benefit.