Mediation of Medical Negligence and Personal Injury Claims - SKILLS FOR PARTIES AND THEIR REPRESENTATIVES

What does this course achieve?

This one-day course offers the plaintiff lawyer and client, and clinician and representative the opportunity to develop an understanding of mediation in the medical setting, and skills in how to prepare a case and participate effectively in mediation. The course will be facilitated by Tony Allen, the most experienced medico-legal mediator in the UK, and experienced Conflict Dynamics' mediator trainers. It is well known that the South African healthcare industry is facing a crisis of rising claims against medical practitioners and service providers, including the Department of Health. Mediation is a process which could be used at almost any stage of a conflict or dispute to address the concerns raised by patients and to achieve better outcomes earlier and at less cost.

Course outline

  1. A review of the scale of the medico-legal crisis in South Africa, and a discussion of the challenges faced;
  2. Distinguishing mediation from other dispute resolution processes, including litigation;
  3. A discussion of the reasons why clinical claims lend themselves to mediation, and what can be achieved in mediation;
  4. Identifying cases that are suitable for mediation:
    1. cases with straightforward grounds vs cases with complex scientific grounds?
    2. cases with straightforward quantum considerations vs cases with complex quantum considerations?
    3. cases with straightforward legal considerations vs cases with complex legal considerations?
    4. cases involving independent claimants vs cases involving claimants who need curator ad litem, protection of funds, long terms care and / or case management?
  5. Understanding the typical legal pathway in clinical claims and key legal considerations such as:
    1. merits and negligence (liability)
    2. causation and apportionment
    3. quantum of damages - general, specific, special
  6. Exploring the typical routes to mediation:
    1. Early voluntary mediation
    2. Magistrates Court referred mediation
    3. High Court pre-trial conference
  7. How to encourage parties (particularly claimant lawyers) to use mediation - what arguments to use, how to persuade and influence
  8. Understanding the key features of medico-legal mediation, including:
    1. Preparation, including the value of pre-meetings
      1. the role of the mediator, and what of co-mediation?
      2. who attends, including the role of lawyers and insurers,
      3. the role of experts and expert testimony in mediation, jointly appointed experts, exchange of  reports
      4. questions of power balance in the mediation
      5. mediator preparation to cope with experts and technicality
      6. party preparation
      7. anticipating the possibility of non-monetary outcomes
      8. the value and legal consequences of apology, explanation and reassurance of change
    2. Opening meeting
      1. pre-meeting coaching to make difficult conversations possible
      2. managing emotionally charged conversations
      3. how to get parties to feel safe
    3. Exploring
      1. considering where each party’s interests lie, be they confidentiality, reputation, disclosure and the need for an explanation, and to ensure that the injury is not done to others in future
      2. conveying information and encouraging openness
    4. Bargaining
      1. assisting parties assess the risk and the consequences of a failure to reach agreement in meditation
      2. developing low-cost / high-value outcomes, monetary and non-monetary outcomes, including an admission of responsibility, and apology, health and welfare provisions
    5. Facilitating the conclusion of an enduring and legally binding agreement to end claims
  9. Role-play, using typical medico-legal disputes, to give lawyers and health care professions an opportunity to experience the mediation process
  10. Discussion about accessing mediators, establishing panels of accredited medico-legal mediators and ways of promoting medico-legal mediation in South Africa.

NOTE: This course will be registered with the HPCSA so that participants can earn CPD points by attending.

What participants say

"Marvellous opportunity to learn from the UK experience."
- Herman J. Edeling, SAMLA, June 2017

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