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.
- A review of the scale of the medico-legal crisis in South Africa, and a discussion of the challenges faced;
- Distinguishing mediation from other dispute resolution processes, including litigation;
- A discussion of the reasons why clinical claims lend themselves to mediation, and what can be achieved in mediation;
- Identifying cases that are suitable for mediation:
- cases with straightforward grounds vs cases with complex scientific grounds?
- cases with straightforward quantum considerations vs cases with complex quantum considerations?
- cases with straightforward legal considerations vs cases with complex legal considerations?
- cases involving independent claimants vs cases involving claimants who need curator ad litem, protection of funds, long terms care and / or case management?
- Understanding the typical legal pathway in clinical claims and key legal considerations such as:
- merits and negligence (liability)
- causation and apportionment
- quantum of damages - general, specific, special
- Exploring the typical routes to mediation:
- Early voluntary mediation
- Magistrates Court referred mediation
- High Court pre-trial conference
- How to encourage parties (particularly claimant lawyers) to use mediation - what arguments to use, how to persuade and influence
- Understanding the key features of medico-legal mediation, including:
- Preparation, including the value of pre-meetings
- the role of the mediator, and what of co-mediation?
- who attends, including the role of lawyers and insurers,
- the role of experts and expert testimony in mediation, jointly appointed experts, exchange of reports
- questions of power balance in the mediation
- mediator preparation to cope with experts and technicality
- party preparation
- anticipating the possibility of non-monetary outcomes
- the value and legal consequences of apology, explanation and reassurance of change
- Opening meeting
- pre-meeting coaching to make difficult conversations possible
- managing emotionally charged conversations
- how to get parties to feel safe
- 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
- conveying information and encouraging openness
- assisting parties assess the risk and the consequences of a failure to reach agreement in meditation
- developing low-cost / high-value outcomes, monetary and non-monetary outcomes, including an admission of responsibility, and apology, health and welfare provisions
- Facilitating the conclusion of an enduring and legally binding agreement to end claims
- Role-play, using typical medico-legal disputes, to give lawyers and health care professions an opportunity to experience the mediation process
- 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
How do I find out more?
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