PROF VYTA SENIKAS BSC MDCM FRCSC CSPQ LMCC
PROF VYTA SENIKAS BSC MDCM FRCSC CSPQ LMCC MBA MCGILL UNIVERSITY MOSCOW, JUNE 6, 2019
USUAL COURSE OF EVENTS LEADING UP TO LITIGATION Medical Mishap/ Miscommunication/ Negligence Grievance Overture for compensation/ threat of legal action Settlement / Litigation 2
LITIGATION Involves a Suit filed in Court Medicolegal context Generally involves Tort • Negligence An Assertion of injury/ breach Contract Growth Areas – Product Liability A claim for damages 3
Nature: Adversarial. Focus: Legal rights and past events 4
CASUALTIES OF LITIGATION • Confidence • Reputation • Humanity • Team relationships • Trust 5
For the uninvolved: Litigation is very exciting 6
BUT For those involved it can be draining • emotionally • physically • mentally • Financially 7
Are there better ways to deal with disputes… 8
WHAT IS ALTERNATIVE DISPUTE RESOLUTION If we start with generally resolved. as the way disputes are Everything else is Alternative 9
MOST COMMON ALTERNATIVE DISPUTE RESOLUTION METHODS Neutral Evaluation Mediation Arbitration Negotiation 10
COLLABORATIVE LAW 11
Many lawyers already practice alternative dispute resolution techniques Many matters are dealt with via negotiation before the parties even step into Court. 12
What is so special about medico-legal matters? Why negotiation may not be enough? 13
Motivations behind disputes Negotiation does not heal all wounds • Money • Anger • Guilt • Blame • Revenge • Despair • Negotiations generally culminate with a money movement • Parties often remain at odds • Emotional bridging between doctor and patient is not a priority • Exposure to an allegation of misconduct still remains • Money may not address the motivations behind a dispute • Collateral damage/ consequences to the healthcare provider not dealt with. 14
Mediation Parties work with a trained impartial navigator to: (a) look at and address issues in dispute (b) explore options and (c) overcome impasses 15
Mediation A fundamental feature of mediation is that the parties arrive at their own decision rather than have a decision imposed on them. 16
What does a mediator do A good mediator motivates parties towards a resolution, by identifying underlying interests or issues and assisting parties to overcome impasses. 17
Mediation in medico-legal matters is becoming more common in places like Singapore, Australia, Hong Kong and in the UK and USA Numerous models for mediation 18
2007 (Singapore) - Medical Mediation Scheme was started as an initiative by Ministry of Health and the Singapore Mediation Centre. -Catering for cases where the quantum does not exceed SGD 30, 000 --As at 2012 there were only 3 cases filed- all resolved. Source: Mediation in Medical Dispute Resolution [2012] Asian JM 65 (Loke P; Seow WT) However, many more matters are mediated on an ad hoc basis including high value cases. 19
The real attraction of mediation is that it fulfils a number of fundamental needs: Confidential unless the parties otherwise agree. Minimizes risk for parties In most instances the parties perceive it to be fair It flexible and final It is economical It is fast 20
Mediation is a voluntary process Lawyers (some) Clients who don’t pay lawyers Aggression = strength perception 21
Decision-maker: Parties themselves. Collaborators: Lawyers Proceedings: Controlled + Nonconfrontational. Focus: Solving the problem, having regard to the parties’ interests. 22
Focus on interests, needs/concerns. Restore relationships Address the actual motivation behind a dispute Deal with an issue without a public pronouncement 23
INTERESTS OF HEALTHCARE PROVIDERS Reputation Safety Perception Confidence Insurance Time Profit 24
INTERESTS OF PATIENTS AND INDIVIDUAL HEALTHCARE PROVIDERS Correct Care/ Attention Safety Future Compensation Insurance Time Confidence to carry out procedures/ that the procedures were correctly done 25
IS COURT DIRECTED MEDIATION … real Mediation? 26
Parties are already at the courthouse. Mediation is voluntary and lawyers are not sanctioned for scuttling mediations in favour of trial. Not all Judges make good mediators Positional negotiation is what actually takes place The focus is on the “what” as opposed to “why”. 27
IDEAL DISPUTE RESOLUTION PROCESS Neutral Evaluation Negotiation Mediation Arbitration Litigation 28
THANK YOU 29
- Slides: 29