Jan 12, 2018 in Research

Mediation and Conciliation

Introduction

Ireland's modern healthcare sector is experiencing ever-rising challenges that negatively affect patients' experiences as well as interaction between people who work in the sector (Baraldi & Gavioli, 2008). Every time conflicts occur in not only Ireland’s healthcare system but in other healthcare systems in the world, it significantly undermines the quality of care for patient, and paradoxically results in the strategy to cut down the costs. This is because these conflicts are inherently expensive. Conflicts arising in the healthcare system sidetrack the eventual objective of offering efficient and effective patient care. Nevertheless, various researchers have argued that conflicts have assumed "the role of a “Petri dish” in which various process of Alternative Dispute Resolution", and different fields of medicine have become productively and closely linked. In addition, the two terms, medicine and mediation have a lot in common. Both of them are academic disciplines where an individual might seek healing process (Mediate Ireland, 2013). In this regard, this paper discusses the role of mediation in the field of medicine in Ireland.

Alternative Dispute Resolution (ADR)

It is extremely important to define ADR since it is a significant part of conciliation whenever a conflict arises. According to Baraldi (2009), alternative dispute resolution concerns "knowing and providing legal, moral and ethical resolution to conflicting parties". Mediation is effective in cases of medical malpractices, in which poor communication has resulted in the dispute or where healthcare professional and the patient wish to maintain their relationship. In Irish republic, the association between medicine and law is not a friendly one. In addition, according to Baraldi & Gavioli (2008), the "massively pro-adversarial dispute resolution culture is affecting the field of medicine".

Problems in healthcare field have provided a lesson to the world of ADR concerning what takes place in extremely sophisticated decision making circumstances and in high stakes conflicts. According to Heffernan (2011), many people, including health professionals, possess an ability to making decisions regarding various multi-faceted high-stake problems. In the field of medicine, divisive problems can result into extremely complex conflicts. According to Rasnic (2007), in such environment, every side of the conflict stays in shadows.  

Conventionally, techniques used for resolving disputes in the healthcare sector are those that are based on risk management, chain of command, and peer review. Rasnic (2007) adds that that these techniques lead to one-sided decision making and exclusion of conflicting parties affected by both informing of remedies or decision and seeking their input beyond the initial complain. The options for dispute resolution that were initially designed to avert these problems nevertheless maintained several adversarial aspects. This is because the designed steps concentrated on addressing malpractice issues via methods such as arbitration. A creative and effective mix of conflict mediation integrated into both legal culture and professional medical training will result in dynamic sharing of knowledge concerning dispute resolution throughout the healthcare system in Ireland (Rasnic, 2007). Perhaps, to the field of managed healthcare guiding principles of fairness and efficiency are of great significance.

The loopholes existing between medicine and law can primarily be dealt with by mediation because it can enable healthcare providers, such as HSE, to support an ADR process that is cost-effective without violating the constitutional rights of the patient to access justice (Baraldi & Gavioli, 2008). In addition, the process does not prevent less powerful conflicting parties form receiving protection of the formalities linked to litigation. Introduction of the mediation scheme into Irish healthcare system was not only a smart business choice but also an ethical one.

Need for Alternative Dispute Resolution in Ireland’s Healthcare System

According to Baraldi & Gavioli (2008), "Ireland has emerged as one of the most litigious jurisdictions outside the United States". Considering Ireland's size and limitation of resources, especially the difficult economic times, this litigation cannot proceed. Lawyers have an inherent responsibility to ensure that the claims of their clients are addressed in the most effective way possible. According to Baraldi & Gavioli (2008), it can take about two years for an average case in the mainstream courts of Ireland to be decided. Thus, many clients were warned to anticipate long delays before hearing of their case in the court.

"The inadequate spending during the short tenure of untamed Celtic Tiger had catastrophic impacts on Ireland’s legal system" (Baraldi, 2009). Widespread demands were made on Civil Courts that were heavily burdened. However, legal resources were not increased in order to meet this demand. Ireland experienced various advantages in resolving conflicts outside the courtroom by using a neutral third party. Presently, many of country’s highly respected judges are sincerely promoting various kinds of ADR with an aim to unclog the current litigious backlog (Mediate Ireland, 2013).

In order to analyze the solution required in a given conflict, it is crucial to recognize the strictness of the conflict in question. According to Baraldi (2009), disputes usually arise when conflicts go unresolved. In order to solve disputes, mediators can negotiate informally or seek legal advice. In order to provide access to justice, Irish society might provide various options and proposals to address such conflicts. In some inevitable situations, true justice can only be attained by High Court order, especially where both conflicting parties were heard and technical evidence has been scrutinized (Rasnic, 2007).

Mediation Policies in Ireland Healthcare System

Until the introduction of Clinical Indemnity Scheme (CIS) under the sponsorship of the States Claims Agency, many indemnity and insurance arrangements in Ireland meant that a different legal team represented every defendant to a claim (Baraldi & Gavioli, 2008). According to SCA, this resulted in a decreased effectiveness of conflict resolution and significantly increased the time needed to process claims.

The Medical Practitioners Act of 2007 significantly broadened the basis on which patients might bring a claim for misconducts related to professionalism (Mediate Ireland, 2013). Before this, Irish Medical Council was authorized to address complaints concerning misconduct related to professionalism as well as fitness to practice due to mental or physical disability. The Medical Practitioners Act of 2007 lists consequent grounds inter alia. Such grounds include failure to conform to an undertaking, poor professional performance, failure to conform to conditions of registration, criminal conviction, or infringement of provisions of the Medical Practitioners Act of 2007. Medical Practitioners 2007 also requires the establishment of a Preliminary Proceedings Committee (PPC). According to Baraldi & Gavioli (2008), PPC screens the claims made against healthcare providers. If necessary, according ROOO, the PPC refers claims of disputes to the Fitness to Practice Committee for further hearing.

According to Rasnic (2007), mediation plays a significant role by introducing new authority to solve disputes by mediation. As cited by Baraldi (2009), many claims received by regulatory bodies and Medical Council can be addressed in an extremely satisfactory manner via mediation. Medical Practitioners Act of 2007 in section 62(1) points out that the Medical Council might prepare necessary guidelines to address disputes by mediation methods. However, no single attempt can be initiated to address the dispute through mediation without approval of both the complaint and the registered medical practitioner. However, it is not interpreted as an admission of any accusation in cases where the medical practitioner has consented to mediation. Each communications made in the course of mediation cannot be deployed in disciplinary, criminal, or civil proceedings, and are confidential. According to Baraldi & Gavioli (2008), resolution of a claim cannot include the repayment of any financial compensation when made by mediation.

Mediation and the Present Legislative Framework

The elevated importance of the role of mediation in various sectors of litigation is manifested in various court rules and legislative provisions, which have come into force within the few recent years. For instance, under section 16 of the Civil Liability and Courts Act, the parties to commercial dispute entered into the Commercial Court List might be compelled to enter mediation. According to Baraldi (2009), the most recent constitutional recognition of the effectiveness and efficiency mediation is Rule 56 RSC.

In relation to medical negligence, under section 62 of the Act of Medical Practitioners Act of 2007, the Medical Council has the ability to refer matters of dispute resolution by mediation. As aforementioned, the Medical Council has put in places various guidelines in this section. However, Heffernan (2011) adds that the commencement of mediation is an issue of consent of both the complaint and medical practitioners. Importantly, the guidelines established by the Medical Council introduce recourse to the disciplinary processes of Medical Council in the event any mediated agreement is infringed. This might possibly serve as a deterrent to mediation process.

Roles of Mediation and Conciliation in Ireland’s Healthcare System

Mediation is widely known as one of the efficient and cost effective methods for parties that want to achieve a satisfactorily dispute result (Heffernan, 2011). There are also other extra advantages of flexibility because it works with the Civil Justice process. Mediation achieves this via structured agreements of Commercial or Small Claims Court. The number of medical negligence litigation cases has increased sharply in the few recent years. The Law Reform Commission (LRC) suggests different strategies where mediation can play a significant role in resolving medical disputes. About 1500 individuals die each year in Ireland because of errors of medical practitioners. Largely, clients seek compensation and the claims are based on the tort of negligence. Additionally, the expertise and medical technicalities involved extend the time taken to process the claims and significantly increase the cost. However, many modern healthcare problems are alleviated via introduction of conciliation and mediation. It is apparent that conflicts arise in almost all professions, though when they arise in medical profession they frequently lead to reduced quality of healthcare or extravagant cost (Heffernan, 2011). In the worst case, conflicts in medical profession might result in death of the patient. Individuals involved in healthcare conflicts might clearly get advantages from the deployment of mediation and conciliation in solving their differences.

Ireland’s Healthcare System can benefit from learning from its previous experiences. It must strive to create and spread mediation techniques in solving conflicts (Heffernan, 2011). The only strategy to achieve this aim is to let mediation penetrate into the medical profession via educating and training the medical practitioners in the field of ADR and mediation. Together with the treatment plan and evaluation diagnosis, it might use rational process to motivate healthcare professionals to be open about solutions to clinical conflicts.

The first role of mediation with respect to medical negligence is to allow resolution of disputes in a more confidential, timely, and economical way than the present system that places extremely huge psychological, personal and economic burdens on all the involved conflicting parties (Rasnic, 2007). Each communications made in the course of mediation cannot be deployed in disciplinary, criminal or civil proceedings, and are confidential. According to Mediate Ireland (2013), for a plaintiff, mediation and conciliation offers a way of conflict resolution, which has less risk. Mediation, unlike the current system of dispute resolution, can offer satisfaction within a very short time. For the legal team of the plaintiff, the case often offers the best chance to work out a structured settlement while those non-monetary issues such as apologies and explanations can improve the ultimate value of a settlement.

According to Mediate Ireland (2013), worldwide experience shows that conflicts appear to resolve more consistently if mediation takes place very early. Many defendants of medical negligence cases are experts who understand the risks, theories and facts. They might be extremely likely to have access to almost all facts before the discovery of the plaintiff even seeks them.

Mediation and conciliation have a role in regulating the medical costs related to litigated cases. Medical costs in Ireland have of fully litigated cases are massive. In addition, professional indemnity premiums are huge and all of these costs are eventually passed on to the state and consumer (Heffernan, 2011). This costs are reflected in the both the actual cost of healthcare, and the level and standard of healthcare. According to Baraldi & Gavioli, (2008), the costs of fully litigated cases place economic burden on the Irish society. Mediation assists both conflicting parties to arrive at a cordial solution and to be heard. Irish studies indicate that the average costs of cases that result in a comparatively early mediated agreement is almost 20 per cent of middling cost of fully litigated case. According to Heffernan (2011), mediation enables all the conflicting parties be heard and facilitates a cost-effective, fast, satisfactory and confidential results for every involved parties, including the significant benefit for medical practitioners of increased client satisfaction.

The courts system of Ireland has a moral responsibility of exploring the alternative techniques. This is because the country’s court can no longer offer the necessary services it endeavors to perform (Heffernan, 2011). This is in line with the common phrase, “justice delayed is justice denied.” Perhaps this is one of the major roles of mediation of justice and conciliation in Ireland’s health system. In addition, it is evident that effective mediation and conciliation processes depend on the expectation of timely judicial solutions, with every client entitled to considerable access to the courts system.

According to Baraldi & Gavioli, (2008), mediation has a role to play in maintaining the flexibility of outcome or remedies. The huge majority of claims brought against medical professionals in Ireland are done under the tort of negligence as mentioned above. The primary solution to a litigant in negligence is usually financial compensation. The plaintiff in medical negligence actions often desire extremely a wide range of redress like an explanation, apologies or an undertaking in order to overhaul a certain clinical process so that the causes leading to the conflict cannot reoccur. For instance, a defendant medical consult or doctor can many years virtually terrorized by the threat of professional ostracism, public embarrassment and financial ruin. He or she is often most anxious to apologize and give that explanation that the plaintiff suffered harm, even if not submitting that the harm (Rasnic, 2007). However, what happens is that the defendant and the insurance company, employer and their insurance company, and other medical practitioners take up ingrained denial matrices between themselves. Therefore, the first part of mediation and conciliation is usually between the various defendants. If the defendants have an agreement on reasonable range figure, prior to going into the resolution process, then whether or not the plaintiff is willing to move into that range of figures can be explored.

Mediation and conciliation also play a role in ensuring that the parties retain control. According to Mediate Ireland (2013), high level of animosity and suspicion is frequently a feature of medical negligence claims. According to Baraldi & Gavioli (2008), self determination is key principle of mediation and it provides procedural justice protections by offering conflicting parties with dignity and fairness. The perceptions of the conflicting parties in medical profession are improved when they take part in the processes, and voluntarily agree o an outcome that is coercive-free influences. In keeping control of the mediation process at all phases, for instance, the conflicting parties might consent to a specific mediator who has knowledge in the dispute resolution in medical profession.

Educating and Training Doctor in Mediation and Conciliation

Despite the superfluity of challenged experienced by medical profession in a normal day, few have the required skills to solve conflicts (Rasnic, 2007). Presently, there is apparently not enough formal training in medical profession. It is important to note that this is not particular to healthcare practitioners, and the same training can be implemented for domestic legal profession. In addition, it can be affirmed that legal practitioners in Ireland, such as solicitors and barristers, lack necessary ADR skills. There is also an ultimate increase in the involvement of lawyers in this process.

Applying the dispute resolution in hospitals offers an exceptional chance to give hope to the clinical field (Rasnic, 2007). By offering professional development and education, Alternative Dispute Resolution can result in cooperative interaction "by combining solidified conflict resolution processes with a universal environment rampant with multifaceted issues". Creating close association between healthcare and ADR provides healthcare professionals with a chance to incorporate interest-focused process of Alternative Dispute Resolution. If every stakeholder in Ireland’s Healthcare System can gain skills related to conflict management, organizational body will have more opportunities to offer safe and efficient healthcare (Baraldi, 2009).

Conclusion

Every time conflicts occur in not only Ireland’s healthcare system but also in other healthcare systems in the world, it significantly reduces the quality of patient care, and paradoxically sophisticates the struggle to cut down the costs. Alternative dispute resolution concerns knowing and providing legal, moral and ethical resolution to conflicting parties. Conventionally, the techniques used for resolving disputes in the healthcare sector are those that are based on the chain of command, risk management and peer review. In order to analyze the type of solution required in a given conflict, it is extremely important to acknowledge the strictness if the conflict in question. The elevated importance of the role of mediation in various sectors of litigation as manifested in the various court rules and legislative provisions, which have come into force with the few recent years. The first role of mediation, with respect to medical negligence, is to allow resolution of disputes in a more confidential, timely and economical way than the present system that places extremely huge psychological, personal and economic burdens on all the involved conflicting parties. Mediation and conciliation have a role in regulating the medical costs related to litigated cases.

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