Q: If a doctor feels that he/she has not been negligent in a particular case would an offer of mediation not equal an admission of guilt from the side of the doctor
A: No. All offers are without prejudice and confidential. That means that the offer may not be disclosed to the court at any stage unless the party making the offer wishes to disclose it.
Q: Be very aware of the financial motives of attorneys who do not wat to go the mediation route.
A: I would comment that most attorneys are stuck in the usual litigation system, and simply do not understand how mediation can be used as a vehicle for resolution of disputes which does NOT negatively impact their revenue stream, but benefits the doctor through a negotiated solution.
Q: If Plaintiffs are more interested in mediation because of possible benefits then its a challenge to a practitioner who had done its best.
Although there are benefits to a Plaintiff using mediation, there are also benefits to the Defendant. In a properly conducted mediation, both parties benefit. This is the true power of mediation – a solution can be found which is better for both doctor and patient.
Q: As the attorney works for the insurer and not for you, can you really instruct them what to do?
A: There must be a working relationship between attorney and client – in this case the doctor. The exact legal relationship between attorney, doctor and insurer is complex (for both legal and commercial reasons). But the doctor has an important say in the process and must be able to express their views on a mediated solution. Incidentally, most insurance companies are in favour of mediation and in fact provide standard mediation clauses. The best advice is to work with your legal team, but not be afraid to express your view regarding mediation. You should get a reasoned explanation of how the legal team are approaching the issue.
Q: First the truth must be established before mediation. This can only be established by the parties directly involved. The current system is not about the truth but is driven by money.
A: The aim of mediation should include exploring what happened in a safe environment, where information shared will not be abused. That is why mediation is structured in a way that promotes the proper exploration of the issues without risk to the parties.
Q: I had mediation for a trivial matter of an unhappy patient with my staff. At the end the mediator asked what am I I’m willing to do for this to go away. He advised a week in my holiday home or something like that. I don’t think that is the purpose.
A: Ideally, the mediator should explore with you as the party to the proceedings what you would suggest in order to settle the dispute. Your views on the proper role of mediation – and resolution of the dispute – should be encouraged in order for an appropriate settlement to be reached.
Q: First the truth must be established by the doctors ,by peer review. Doctors should have the right for self adjudication as they are the experts. Then there will be huge cost saving.
A: It is important for expert input to be obtained. However, the expert must be objective, and therefore a trusted and reliable expert can be jointly appointed by the parties if they both agree. This is however best done with the guidance of a qualified mediator in order to avoid the settlement being attacked later should the patient decide that he or she is no longer happy with the settlement.
Q: Ian, from a different angle: If obstetricians are doing expert witness work and gets approached by a plaintiff/defendant in a matter where summons has already been issued, does the expert witness have any room to recommend mediation between parties?
A: Great question. The expert should always work through the representatives who instruct him or her. My advice would be to speak to the attorney/advocate instructing you directly, explaining your reasons. It is ultimately their decision, but again, you have a voice in the process. That is particularly so when you are dealing with issues directly in your field – such as where there is a difference with the opposite expert which can’t be resolved through a joint minute. Recommending a mediation of that issue before a qualified and respected mediator could be of real assistance to your legal team.
Q: Will an official position statement from SASOG to support the principle of mediation and the enforcement of rule 41 assist in ensuring increased mediation?
A: Another great question. I believe that SASOG has a crucial role to play in ensuring that mediation of clinical negligence issues is properly implemented in South Africa. I cannot comment on SASOG policies directly, but I would support such an initiative.
Q: I am busy with mediation at the moment. It is only about money.
A: I am very sorry to hear that. Unfortunately, the process can become a process of horse trading if there is not active encouragement of other important aspects such as the dignity of the parties, understanding their experience and where they are coming from, what their needs truly are and similar issues. This may sound a bit “soft”, but I can honestly state that properly handled these are profound issues for both patient and doctor and it is a great pity if the mediation process does not put these issues at the centre of the dispute. Yes, money is a part of the process, but it should really never be only about money.
Q: the best solution for the lawyer is no solution.
A: It is important to bear in mind that the lawyers have a client to keep happy. Irresponsible litigation definitely has an impact on the long term relationship. Having said that, lawyers come with different professional levels of experience and competence- and attitudes, and some do take a short-sighted approach.
Q: Ian- thank you! But who is the client ? Insurer or defendant or both?
A: One would have thought that, given the number of insurance claims, this issue would have been clearly settled. But technically, the question raises some challenging issues – particularly in the context of mediation. I would make three comments: 1. It is clear that the insurance company is the attorney’s client. But what is not clear is what duties the attorney owes the insured (in this case the doctor). It is recognised that there is a “tripartite” or “triangular” relationship, and that there are also duties to the insured – but the exact nature of the duties in the mediation context has not been addressed by the South African courts. 2. I would advise that the matter should therefore be approached on a practical level. From this perspective, and bearing in mind the broader relationship between insurer and the medical profession, there is no doubt that the doctor has an important say in the manner in which the litigation is conducted, whatever the finer legal points may be. I therefore encourage doctors to be informed as to the issues relating to claims, and to work with the insurer and the legal team to respectfully express your views. 3. These are not issues for the individual doctor to deal with in isolation. Doctors’ groups and organisations should engage constructively with insurers to continually promote the views and interests of the medical profession.
Q: I note that Graham Howarth is a delegate. Could we ask him for a comment. Thanks
A: It would be great to interact with Graham on these issues and get MPS’s perspective. I personally have found MPS to be extremely reasonable in their approach.
Q: Does Rule 41 apply to the magistrates’ court?
A:No. It is a High Court Rule. However, the Magistrates’ Courts have a similar mediation process.
Q: Can a mediator be chosen by the parties or do they get randomly assigned to cases?
A:The mediator needs to be jointly agreed between the parties.
Q: I agree first a solution must be find by parties directly involved without lawyers.
A: While that is a possibility in principle, the challenge here is that this is not the way that insurance contracts are structured. So, as soon as you are insured, this option effectively disappears.