Mediation: A perfect solution to health care disputes 

By Marietjie Botes

Mediation as an alternative form of dispute resolution received renewed attention with the court-annexed mediation rules being piloted at various magistrates’ courts around South Africa and already provided for in r 37 of the Uniform Rules of Court governing the proceedings in the High Courts of South Africa. Being a voluntary process that allows the participants to control the course and outcome of their dispute, in a private and confidential setting, it seems to be the perfect solution to health care disputes for reasons that I will discuss below.

The challenge

South African health care disputes resulting in litigation are dramatically increasing. Not only the number, but also the sizes of medical malpractice claims have increased. The Medical Protection Society confirmed an increase of medical malpractice claims against their members of nearly 550% in comparison with ten years ago and an increase in the number of claims exceeding R 5 million of approximately 900% during the past five years, with several of these claims exceeding R 30 million (Sherlock C Letter to members of the Medical Protection Society re membership renewal and subscription rates, 2010 & 2011 in MS Pepper and MN Slabbert ‘Is South Africa on the verge of a medical malpractice litigation storm?’ (2011) 4 SAJBL 29).

In MS Pepper and MN Slabbert’s paper (op cit) they argue that this state of affairs could be attributed to –
• patients being better informed of their rights and legal options;
• the further deterioration of an overburdened and under resourced public health care system as a result of increasing large medical malpractice payouts by the State;
• the faultless liability regime created by s 61 of the Consumer Protection Act 68 of 2008; and
• an increase in advertising material regarding legal services offered when medical malpractice is suspected.

The ripple effect is that insurance premiums for medical practitioners such as obstetricians and gynaecologists, who are most affected by the litigation increase, became so expensive that very few practitioners can afford it (E Coetzee Obstetrics: the changing face of litigation Africa Casebook 2010; 18:7–9 in Pepper and Slabbert (op cit)). Subsequently fewer practitioners are sufficiently insured or insured at all. Practitioners, fearing claims against them, also practice more defensively by ordering more, often unnecessary, medical tests to confirm their diagnoses, which not only results in increased medical costs for patients, but ironically also give rise to further possible scenarios for malpractice claims – and so the increase in litigation cycles on.

Health care disputes and following litigation do not only pose huge financial risks, but are usually emotionally loaded disputes. Patients feel humiliated, angry, frustrated and hurt, over and above the financial damages they might have suffered, while the doctor may fear the effects a ‘trial by media’ may have on his or her professional reputation and future of his or her practice, over and above the often enormous claim he or she may be facing. While litigation will primarily focus on the rights and wrongs and calculations based thereon, the whole process and its inherent adversity might never get to the true root of the initial problem and in the meantime destroy a career, bankrupt a person notwithstanding the outcome of a trial, exacerbate an already hostile relationship and drag on for years. Mediation, on the other hand, preserves relationships, maintains privacy and confidentiality, give everyone a voice and put control of the process back in the hands of the disputing parties to enable them to determine their own outcome. 

The standard and the alternative

To call mediation a form of Alternative Dispute Resolution (ADR) is a misnomer because the majority of litigious matters are settled before proceeding to trial. It would then be more accurate to call litigation the alternative method of dispute resolution and mediation the norm.

The main difference between these two methods of dispute resolution is the subjective resolution imposed by a judicial officer during litigation and mediation’s client centred approach, during which disputing parties control their own outcome by participating in one of three styles of mediation (or any combination thereof):
• Evaluative mediation where the mediator evaluates the strengths and weaknesses of each side’s story and predicts the possible outcome, should the participants still decide to go to court; 
• Facilitative mediation where the mediator merely acts as guardian of the mediation process; and
• Transformative mediation where the mediator supports empowerment, encourage deliberation, decision making and perspective taking.

Why mediation is tailor made for health care disputes

Bridging the communication gap

The breakdown of any doctor-patient relationship is characterised by poor communication. Doctors’ consultations with patients are often plagued with medical jargon that leaves patients confused when they need to make important decisions about their health and future treatment, which can eventually lead to arguments and disputes. 

A mediator will clear away both the medical and legal jargon to make crucial information available to both parties in plain language. Once both parties are empowered with information to enable them to understand the other’s position, disputes due to miscommunication often resolve quickly and cost effectively.  

Balancing inequalities and power

In M Gladwell’s book Blink (New York: Little, Brown and Company 2005), he says that patients often seeks retaliation or vindication of their moral position in addition to money. However, in a doctor-patient relationship the patient usually feels overpowered by the more knowledgeable and important doctor and far from being able to vindicate his or her moral position.

One of mediation’s strengths is to neutralise any power imbalances by allowing a ‘weaker’ party, like the patient, to air his or her feelings in confidentiality, during private caucus sessions with the mediator, where he or she might otherwise not have been comfortable in doing so in the presence of the doctor, let alone in a public hearing. Through this mechanism, the actual root of a dispute can be exposed and dealt with by giving a ‘weaker’ party the opportunity to be heard and listened to.

The zero-sum game

The perception that when one party wins, the other party loses inevitably leads to parties withholding information from each other, which makes it impossible to resolve any dispute because the nature and extent of the issues at hand cannot be fully established. Due to its very nature medical decisions are often very complex, for instance how much Morphine to administer or when to resuscitate a patient or not. It is thus easy to see that information that sketches a full picture of the events leading to the dispute between the parties is crucial to its resolution and that withholding information will further drag out and negatively charge an already unpleasant or hostile situation.

Because mediation takes place in a fully confidential and private setting parties can exchange information safely and freely via the mediator without fear that the opposing party is merely fishing for facts to be used against the other. Even if the mediation should fail, the parties can still proceed with litigation without confidential information being exposed.  

Resolving moral dilemmas

Overburdened and under resource public health care facilities are breeding grounds for moral dilemmas such as decisions regarding the continuance of life support when there seems to be no hope of recovery or whether to proceed to provide renal dialyses to a habitual non-compliant patient. Solutions to these dilemmas are complex and governed not only by health care law, but also by various similarly complex bio-ethical principles and internal guidelines. In the matter of Soobramoney v Minister of Health, Kwazulu-Natal 1997 (12) BCLR 1696 (CC) the Constitutional Court, determining whether a patient is entitled to receive further renal dialysis from a state hospital after depletion of his private medical aid and having regard to the hospital’s internal guidelines in this regard specifically held that:

‘A court [would] be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it [was] to deal with such matters’.

Considering the court’s stance under these circumstances it is hard to find a more befitting method to resolve these disputes than through mediation. In the United States and Canada disputes between pro-life and pro-choice factions have been successfully resolved to the extent that violence between factions has dissipated even though their differences in opinion still remain (www.mediate.com, accessed 3-3-2015).

Overcoming cognitive barriers 

People often unconsciously develop certain mental blocks preventing them to reach agreement purely because they are involved in a certain process. 

• Perspective bias

The author Anais Nin (Seduction of the Minotaur (Ohio: Swallow Press 1961)) said: ‘We don’t see things as they are; we see things as we are’. Humans by nature are egocentric and blinded by self-interest, which affliction can seldom be overcome without outside help. In a health care dispute a mediator can help the doctor and patient to see the problem from each other’s perspective, which often leads to insight into any situation and a clearer view of a possible common solution.

• Positive illusions

When confronted with the version of events of only one party to a dispute it is easy to overestimate one’s ability to control the outcome of the dispute even if it is determined by factors not necessarily within one’s own control. A legal team that consulted with only one of the disputing parties often conjures up an unrealistic optimism in a client or an exaggerated perception of control over the case because the full extent of the other party’s version of events is unknown as well as the court’s view of the matter. Based on such illusions parties can then set extreme reservation points that can merely lead to dragging out or escalating the dispute.

Especially in medical malpractice disputes, a mediator can draw both parties’ attention to very real risks and the strengths and weaknesses of their cases by means of an evaluative mediation. Faced with a more balanced view of the matter the parties can then make an informed choice about accepting certain risks without having to incur massive legal costs, only to be confronted with the same risks or weaknesses at a much later stage.

• Reactive devaluation

A settlement proposal made by an adversary is often refused or rated as less favourable merely because an opponent offered it. During litigation, when parties only pass on selective information it is understandable that the initial settlement proposals might be considered with circumspection. However, due to the transparent and confidential nature of mediation parties can rest assured that settlement proposals are exchanged in good faith.

• Anchoring bias

Some times when a legal opinion is drafted for a specific client, narrow focus is placed on the beneficial case law, whereas the detrimental case law might be down played or selectively quoted from. Under these circumstances a biased view of a party’s case might be presented with a huge difference between the expected value of the client’s case as opposed to the real value thereof.

During specifically evaluative mediation the mediator will present both the beneficial, as well as the detrimental aspects of each party’s case to enable the parties to fully comprehend their risks and strengths so that they can make informed choices.

• Structural barriers

Every now and again clients differ with their own legal team about their legal advice or the direction their matter is taking. Clients might not wish to follow good advice to settle a matter or might think that their legal team is dragging the matter on for their own financial gain. Often, after a legal team gathered the necessary information from their client, further negotiations are conducted exclusively by the legal team which leaves the client without a ‘voice’ of his own or control over the direction of the matter.

Mediation is specifically structured to empower participating parties to voice their own concerns and interests and in full control of the direction and duration of the whole process without ever being side lined.

Conclusion

Considering the complex, delicate nature of health care disputes, imminent power imbalances, financial risks and the adversarial nature of litigation, mediation offers a much needed and very productive alternative method of dispute resolution.  

• See 11.

Marietjie Botes BProc LLB (UP) LLM (Intellectual Property) (Unisa) is an attorney at Dyason Inc in Pretoria.