Alternative dispute resolution and mediation.

Abstract

Doctors and patients are not natural enemies. On the contrary, there is commonly a special relationship between them, with vulnerability and trust on one side and caring and professional expertise on the other. A medical dispute can create turmoil of that relationship, particularly if it is conducted in the traditional adversarial procedure. Depending on how it develops, the patient may see the practitioner as uncaring and evasive and the practitioner may see the patient as threatening and ungrateful. Legal considerations, the requirements and strategies of indemnifiers, and the language and approach of litigation all serve to fuel antagonism on both sides. Any experience of hospitals or practitioners closing ranks to prevent access to "the truth" may heighten suspicion and hostility. Currently, most medical disputes follow an adversarial path. This entails pursuing a formal claim for damages, through the courts by way of litigation if necessary. The initiation of litigation serves various functions: it signals a serious intention to prosecute a claim; it leads to the use ofprocedures enabling fact gathering and eventual verification to take place; it is a vehicle for providing an outlet to anger, frustration, and other feelings; it interrupts the limitation period; and, incidentally, it provides a potential framework within which settlement negotiations can eventually take place. However, litigation also has shortcomings, both for patients and practitioners. For patients, the public perception is that the most serious failings are cost and delay. With the reduction in availability of legal aid very few ordinary families can afford to undertake medical negligence litigation. Although the move towards conditional fees, which is a form of "no win, no fee," may seem superficially attractive, it will have little effect in medical negligence while the plaintiff remains at risk of paying the huge costs of the defendants in the event of the action failing. Furthermore, solicitors are likely to undertake only cases with high probabilities of success, which are very difficult to identify in medical negligence cases. Although delay, unlike cost, may not actually deny justice to patients, it causes immense distress and hardship. The average time before a medical negligence case is resolved is about four years. Meanwhile the patient and any dependents may suffer considerable privation, and expensive care which may be urgently needed could be denied. For practitioners the years of delay while an allegation of negligence, often unjustified, hangs over them can cause untold distress. As serious an issue for patients is the need to prove negligence and the difficulty in doing so. Not only does this involve finding a medical expert prepared to criticise a colleague robustly but the burden of proof is so difficult to discharge that only a minority of medical negligence claims succeed at trial. The more important shortcomings for patients and practitioners, and indirectly for health authorities and trusts and their managers, are, however, that the wrong issues are addressed because everything has to be reduced to pounds and pence and that the adversarial procedure turns patients into enemies of the healthcare providers. Although financial compensation may be important to claimants, that is by no means universal. The financial claim may often have little more than symbolic value for people seeking accountability who, for example, wants ,£7500 or indeed any sum when they have lost a young child? Accordingly, in common with other fields of activity, there have been moves to seek alternatives to litigation for medical disputes by using processes which effectively serve many of the functions of litigation but with the opportunity to avoid some of its negative consequences, and with the additional dynamic of constructive neutral intervention (see, for example, Kellett,' Leone,2 and Reeves3).