'Best for the Protagonists Involved': Views from Senior Tort Lawyers on the Value of Mediation in Victorian Medical Negligence Disputes

Abstract

Mediation is a dispute resolution process that is more informal and less expensive than litigation, offering confidentiality and encouraging party voice. In medical negligence, parties can experience the benefits that arise in the discourse of mediation, including an explanation about the medical error, or an expression of an apology. In this study, 24 senior tort lawyers were interviewed to explore the use of mediation in medical negligence. Data analysis shows that the participants valued mediation in medical negligence disputes as a case management tool that assisted clients to avoid the stress of litigation. Some lawyers specifically referred to the Civil Procedure Act 2010 (Vic) as promoting mediation. As repeat players and advocates, the participants shielded their client from the legal system and dominated the mediation process. The majority of participants discouraged their client from speaking and prevented emotional engagement and dialogue with the tortfeasor. This research found that the model adopted by the senior tort lawyers resembles an evaluative or settlement style of mediation. The lawyers stymied the full potential of the process and diminished opportunities for party voice. The authors argue that better education for tort lawyers regarding the benefits of mediation would better meet the non-legal and emotional needs of disputants.