Mediation as an alternative to litigation with special reference to medical negligence claims
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Date
2021-09
Authors
Muller, Errol Cedric
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Free State
Abstract
In the recent past, healthcare in South Africa faced, and continues to face, considerable challenges related to an increase in medical negligence claims. The consequences of this increase in claims affect both the public and the private healthcare sectors. Primary healthcare at public hospitals and clinics suffers, because money is spent on legal fees and claim pay-outs, instead of its intended purpose of providing healthcare. Private hospitals and medical professionals are confronted with ever-increasing indemnity insurance premiums, doctors practice defensive medicine to avoid claims, and private healthcare users pay more for private healthcare.
The conventional method of resolving medical negligence disputes is through adversarial court litigation. The parties enter into a trial by battle, they present their evidence and a presiding officer renders a win–lose judgment. Litigation, and the litigation of medical negligence claims, in particular, is expensive, time consuming, complex, and emotionally taxing, and the eventual outcome often fails to satisfy the needs of the litigants. Moreover, attempting to resolve medical negligence issues through adversarial processes does not promote normative constitutional values, such as dignity and equality and, importantly, access to justice. This necessitates legal reform and the adoption of alternative and transformative practices to dispute resolution.
It is argued in this study that mediation offers a viable alternative to litigation generally, and for medical negligence claims, specifically. Mediation, in its barest essence, is third-party (mediator) -facilitated dispute resolution through negotiation. The process is less expensive, less time consuming, and uncomplicated, and party oriented. Mediators assist participants to create their own solution based on their needs and interests, and the mediation process is not aimed at finding a winner or a loser. Medical negligence claims are often traumatic for both the injured patient and the medical professional/s who treated the patient. Having the opportunity to resolve their dispute in a dignified, non-threatening environment, on a level playing field, is something litigation simply cannot provide.
Significantly, the process of mediation enhances the constitutional imperative of access to justice in the context of medical negligence claims on more than one level. The parties have access to a process that provides them with the opportunity to create their own solution to a dispute, using a process that is party oriented, quick, and less expensive than litigation. The cost and time savings enhance social justice by decongesting court roles, freeing up funds for primary healthcare, reducing the cost of private healthcare and increasing confidence in the rule of law.
The judiciary and the legislature, through various judgements and statutory enactments, have demonstrated their support for the use of mediation as an alternative to litigation. The previous minister of Health and several other commentators, academics and practicing mediators have voiced their support for using mediation. The prevailing adversarial culture amongst legal practitioners and the public, in particular, is an obstacle to the more generalised use of mediation. However, and conversely, transforming adversarial thinking and practices could be the ultimate solution to institutionalising mediation. The main drivers behind an effort to radically change legal culture, away from litigation, towards more facilitative dispute resolution mechanisms, will necessarily have to come from the legal profession. Education is the vehicle for transformation, starting from basic education, and moving on to tertiary education and continued professional education.
Confidence in the mediator and trust in the process are indispensable requirements for parties when they elect to mediate a dispute. A properly trained mediator is, therefore, crucial for facilitating the process, particularly in medical negligence claims. Mediators in medical negligence matters must, in addition to conventional training, receive specialised training in aspects related to facilitating these types of claims.
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Keywords
Alternative dispute resolution, Access to justice, Civil procedure, Litigation, Mediation, Medical negligence, Education, Legal culture, Transformation, Communication, Emotion, Thesis (PhD (Law of Procedure and Law of Evidence))--University of the Free State, 2021