Alternative dispute resolution mediation · Alternative dispute resolution andmediation administratively. When disputes did arise a tribunal under the High Court would adjudicate,

Quality in Health Care 1995;4:151-158

Alternative dispute resolution and mediation

Henry Brown, Arnold Simanowitz

Doctors and patients are not natural enemies.On the contrary, there is commonly a specialrelationship between them, with vulnerabilityand trust on one side and caring and pro-fessional expertise on the other.A medical dispute can create turmoil of that

relationship, particularly if it is conductedin the traditional adversarial procedure.Depending on how it develops, the patientmay see the practitioner as uncaring andevasive and the practitioner may see the patientas threatening and ungrateful. Legal consider-ations, the requirements and strategies ofindemnifiers, and the language and approachof litigation all serve to fuel antagonism onboth sides. Any experience of hospitals orpractitioners closing ranks to prevent accessto "the truth" may heighten suspicion andhostility.

Currently, most medical disputes follow anadversarial path. This entails pursuing a formalclaim for damages, through the courts by wayof litigation if necessary. The initiation oflitigation serves various functions: it signals aserious intention to prosecute a claim; it leadsto the use ofprocedures enabling fact gatheringand eventual verification to take place; it isa vehicle for providing an outlet to anger,frustration, and other feelings; it interrupts thelimitation period; and, incidentally, it providesa potential framework within which settlementnegotiations can eventually take place.

However, litigation also has shortcomings,both for patients and practitioners. Forpatients, the public perception is that the mostserious failings are cost and delay. With thereduction in availability of legal aid very fewordinary families can afford to undertakemedical negligence litigation. Although themove towards conditional fees, which is a formof "no win, no fee," may seem superficiallyattractive, it will have little effect in medicalnegligence while the plaintiff remains at risk ofpaying the huge costs of the defendants inthe event of the action failing. Furthermore,solicitors are likely to undertake only cases withhigh probabilities of success, which are verydifficult to identify in medical negligence cases.Although delay, unlike cost, may not actuallydeny justice to patients, it causes immensedistress and hardship. The average time beforea medical negligence case is resolved is aboutfour years. Meanwhile the patient and anydependents may suffer considerable privation,and expensive care which may be urgentlyneeded could be denied. For practitioners theyears of delay while an allegation of negligence,often unjustified, hangs over them can causeuntold distress.As serious an issue for patients is the need

to prove negligence and the difficulty in doing

so. Not only does this involve finding a medicalexpert prepared to criticise a colleague robustlybut the burden of proof is so difficult todischarge that only a minority of medicalnegligence claims succeed at trial.The more important shortcomings for

patients and practitioners, and indirectly forhealth authorities and trusts and theirmanagers, are, however, that the wrong issuesare addressed because everything has to bereduced to pounds and pence and that theadversarial procedure turns patients intoenemies of the healthcare providers. Althoughfinancial compensation may be important toclaimants, that is by no means universal. Thefinancial claim may often have little morethan symbolic value for people seekingaccountability - who, for example, wants,£7500 or indeed any sum when they have losta young child?

Accordingly, in common with other fieldsof activity, there have been moves to seekalternatives to litigation for medical disputesby using processes which effectively servemany of the functions of litigation butwith the opportunity to avoid some of itsnegative consequences, and with the additionaldynamic of constructive neutral intervention(see, for example, Kellett,' Leone,2 and Reeves3).

Alternative dispute resolution (ADR)processesThis paper examines alternative disputeresolution processes with particular referenceto the medical context. These processes havea common thread - namely, the use of a neutralwho impartially helps the parties to resolvetheir dispute. There are two fundamentallydifferent ways in which the neutral can do so:by adjudication, in which the neutral makes adecision which is binding on both sides, andthrough various forms of non-adjudicatoryalternative dispute resolution, in which theneutral has no authority to make any bindingdecision but instead helps the parties to arriveat their own binding agreement as to the termsof resolution.

Adjudicatory forms of alternative disputeresolution in the medical context are primarilyarbitration or expert determination, thoughany other process involving decision makingthat was binding would fall into this category- for example, the way of dealing with disputeswithin the health standards inspectorateproposed by Action for Victims of MedicalAccidents (AVMA) and the Association ofCommunity Health Councils in England andWales (ACHCEW). There is a view thatadjudicatory processes should not be classed asalternative dispute resolution but in this paperthey will be viewed as such.

Penningtons,London EC2M IPEHenry Brown, solicitorAction for Victims ofMedical Accidents,London SE23 lTPArnold Simanowitz,solicitor and chiefexecutiveCorrespondence to:Mr H Brown,Penningtons,Dashwood House,69 Old Broad Street,London EC2M IPE

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Non-adjudicatory alternative dispute res-olution processes entail the neutral usingvarious skills in facilitating a settlement of thedispute by agreement between the parties.Some of these processes may entail anexamination of the merits of the dispute and anattempt to provide a non-binding opinion tohelp guide the parties in their settlementattempts, but because of the non-bindingelement these processes remain non-adjudicatory. Others do not consider the meritsof the dispute, leaving the parties and theirprofessional advisers to place their own weighton the factors relevant to settlement. In theabsence of agreement the parties reservethe right to have the issues resolved byadjudication, whether by litigation or by anadjudicatory form of alternative disputeresolution. These non-adjudicatory, or con-sensual, forms include mediation, the mini-trial, and neutral fact finding experts.

This paper will focus primarily onmediation, as the form of non-adjudicatoryalternative dispute resolution most widely usedor considered by various authorities, as it canbe used without any need for legislation orformalisation, and also as it addresses morethan the formal allegations by the patient andtherefore seems to be more suited to disputesbetween doctor and patient.

In several countries outside the UnitedKingdom, some forms of alternative disputeresolution are available through the courts asan alternative to the strict litigation process,known as "court attached" processes (forexample, court attached arbitration, courtattached mediation, judicial settlement con-ferences, and settlement weeks, also theconcept of a "multi-door courthouse" used inthe United States, under which cases arescreened by an appointed court official to helpdecide which kind of process to use; see Brownand Marriott4). Although some of these pro-cesses are under consideration in the UnitedKingdom, they are not yet in effect and will notbe mentioned further.

Adjudication ofmedical disputesSeveral alternatives to litigation exist whereadjudication is required, as follows.

ARBITRATION

Arbitration is a privately arranged and con-fidential process by which a third party neutral,selected by the parties or through some agreedselection procedure, hears and determines theissues, and whose decision is binding. Thearbitrator's approach may be judicial in itsquality, but the procedures and rules ofevidence may be simplified from the traditionalcourt process, and special rules may be appliedby agreement. So, for example, the arbitratormay be helped by an expert medical assessor;the way in which expert medical evidenceis adduced can be specified; and extensiveoral submissions can be largely replaced bywritten submissions. Arbitration in the UnitedKingdom is regulated by a statutory regimen,which provides a framework, with somefreedom to move outside it.

Towards the end of 1991 the Departmentof Health issued a consultation paper onproposals for the arbitration of medicalnegligence claims.4 Based on ideas first putforward by Lord Griffiths at a conference of theAction for Victims of Medical Accidents inJune 1991, its main proposals were foradjudication by a lawyer and two doctors withevidence resistricted to documents and with nocross examination of witnesses. In early 1995no decision had been made by the departmenton the proposals nor had the comments of theconsultees been published. It is known, how-ever, that there was little enthusiasm for theproposals from patients' or practitionersrepresentatives and it is unlikely that theproposals will be taken any further.

Arbitration services are available for medicalclaims (for example, the Chartered Instituteof Arbitrators has developed an arbitrationscheme for medical negligence claims withinthe National Health Service), but as arbitrationis seen by many patients' groups as a watereddown version of litigation which, save perhapsfor cost and speed, is less fair to patientsit is not generally considered an attractiveproposition.

EXP'ER I DETERUMINATIONExpert determination differs from arbitrationin that the expert's functions and authorityarise from the contract of appointment, subjectto which a determination binding upon theparties is generally required to be made. Thereis no statutory framework (for an overview ofthe use of expert determination see KendalV5and cases of Campbell versus Edwards,' NikkoHotels versus MEPC plc," and Jones versusSherwood1''). Provided that there is no fraud orcollusion and the expert makes a decisionwithin the terms of his or her brief, which maynot necessarily involve hearing oral or writtensubmissions, there is not usually any basis forreviewing or appealing the decision.There may be circumstances in which an

expert determination is appropriate, but manydisputants may prefer, if they seek anadjudication, to have the benefit of court pro-cedures and appeal and review possibilities.

MIED)ICAL INSPECTORA1EAs mentioned, the idea of dealing with disputesbetween patients and doctors within the con-text of a health standards inspectorate has beenproposed by the Action for Victims of MedicalAccidents and Association of CommunityHealth Councils in England and Wales. Therewould be four separate commissions to dealwith claims, complaints, disciplinary matters,and administrative problems. The advantagefor patients would be that all issues would beaddressed by one body whose different sectionswould be interconnected and thus able to shareinformation. Practitioners would benefitbecause not only would considerable time besaved but once the issues were dealt with by theinspectorate, this would be finally conclusive asbetween practitioner and patient.

Claims would be investigated formally bythe inspectors and most would be dealt with

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administratively. When disputes did arise atribunal under the High Court wouldadjudicate, using the inquisitorial approach ofthe inspector for establishing the facts butallowing the parties or their representatives tochallenge them.Although the proposals do not specifically

include arrangements for mediation, theframework would readily allow for referral tomediation. The proposals are under continuingdiscussion and the idea of an inspectorate hasbeen taken up by some of those concerned withthe issue of risk management.

OMBUDSMANAn ombudsman is usually an independentperson whose role is to deal with publiccomplaints against administrative injustice andmaladministration and who has the power toinvestigate, criticism, and make issues public,and in some instances to make compensatoryawards (see Mills"). As these functionscomprise the examination and resolution ofgrievances outside the judicial system (seeBirkinshaw'2), and may include investigationand mediation, many alternative disputeresolution organizations view the ombudsmanas properly coming under the broad heading ofalternative dispute resolution.

Health service commissioners have beenappointed for England and Wales pursuantto the National Health Service Act 1977 andthe Health Services Act 1980. They mayinvestigate complaints relating to allegedfailures by health authorities or trusts toprovide services or complaints of injustice orhardship suffered as a result of action takenby a health authority or trust. However, thelimitations of their investigative powers do notgive them significant relevance to individualmedical negligence disputes. For example, theymay not investigate complaints in which theperson has a right of appeal or review to atribunal or a remedy by way of court pro-ceedings, nor in which the action of the healthauthority or trust was taken in connection withdiagnosis, care, or treatment of a patient solelyin consequence of the exercise of clinicaljudgment.

Mediation and other non-adjudicatoryprocessesSHARED ATTRIBUTESNon-adjudicatory alternative dispute resolu-tion processes including mediation shareseveral characteristics. They are generally allconducted on a confidential and evidentiallyprivileged basis, with the right reserved to goto trial (or to some other form of adjudication)if agreement cannot be reached. Comparedwith adjudication, they are generally relativelylow risk, low cost, and expeditious. They tendto heal rather than exacerbate differences; andtheir success rate in most fields is relativelyhigh. On the other hand, these processes donot constitute a panacea; there are situations inwhich their use would be inappropriate and inwhich a third party adjudication is necessaryand proper; and they need to be handled withcare and skill.

In risk management terms, these consensualprocesses are obviously more effective thanlitigation and other forms of adjudication. Thisis because in adjudication significant decisionsare taken out of the hands of the parties,who become dependent on lawyers, expertwitnesses, and an adjudicator. However, innon-adjudicatory alternative dispute resolutionsuch as mediation, all decision making remainsin the hands of the parties (and with themanagers of health authorities or trusts whenthere is an obligation to indemnify) and therecan be no outcome which is unacceptable tothem (apart from reverting to adjudication).Inevitably, this is the most effective way to tryto manage the risk of a dispute. Anothersignificant factor is that these processes offer aforum in which parties can communicate morefreely and can express concerns and offerexplanations, and even apologies, if appro-priate. They afford the opportunity for patientsto understand the considerations that may havemade a clinical decision more problematicaland for practitioners to understand the feelingsand concerns of the patient.

Traditional lawyers and negotiators some-times query the value of impartial intercession,pointing out that they are capable of con-ducting a case and negotiating a settlementwithout this process. This view certainly hassome validity. When constructive discussionsand negotiations result in parties arriving at anagreed settlement there is no need for neutralintervention as offered by alternative disputeresolution processes. Unfortunately, in asignificant majority of cases this is not thereality, at least until a very late stage, whentime has passed, costs and risk have escalated,and both sides have had to experience muchanxiety and emotional distress. Mediation andother forms of alternative dispute resolutioncan bring a new dynamic into the situation atany stage, with established procedures andskilled practitioners to help in those caseswhich cannot easily be settled by way ofordinary bilateral negotiations.

MEDIATION (CONCILIATION)Mediation may be defined as a process bywhich disputing parties voluntarily engage thehelp of an impartial mediator, who has noauthority to make any decisions for them butwho uses certain skills to help them to resolvetheir dispute by negotiated agreement withoutadjudication (for details of the mediationprocess see Brown and Marriott,4 Acland,'3and Bevan14).The term "mediation" is sometimes under-

stood to be more proactive than "conciliation,"entailing a higher level of mediator inter-vention, but sometimes the reverse usage isused. There is no consistency, but increasinglythe trend is to regard these terms as inter-changeable. Mediation is used here to includeconciliation. This is not, however, to be con-fused with the conciliation which forms part ofthe present family health services authoritycomplaints procedures. Although this form ofconciliation is often helpful, in many cases itdoes not address all the issues worrying the

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patient and specifically does not deal withcompensation. The patient may "resolve" thecomplaint without being aware of all the factsand implications. That can mean that thematter is not finally laid to rest.There is a broad framework for all kinds of

mediation, but within this there is no singleuniversal model that applies to all situations.Various factors may influence the way in whichthe mediation is conducted, as follows.(1) Different alternative dispute resolution

organisations may follow different rules orcodes of practice. Generally, these providepractical and ethical ground rules, andthere is likely to be a broadly consistentapproach.

(2) Mediation may be interest based orfacilitative, in which the parties are helpedto explore their mutual interests and to tryto arrive at a settlement which is in theirrespective best interests. Alternatively itmay be rights based or evaluative in whichevent the mediator, personally or withother professionals or experts, may help theparties to assess their respective strengthsand weaknesses with a view to theiragreeing a resolution which has due regardto their respective rights, so far as thesecan be evaluated. Some mediators willwork only in a facilitative mode, regardingevaluation as having no place in mediation;but even those who will work evaluativelyare likely to do so only after exploringmutual interests facilitatively, because oncea mediator evaluates, his or her impartialitymay be regarded as suspect by one side orthe other. If mediation is to be developedfor medical disputes and be beneficial forrisk management and to patients, aninterest based model may need to prevail.Although a rights based process may be ofinterest and may have some relevance,there is a risk that this approach couldperpetuate some of the problems and theattitudes of practitioners, managers, andpatients that are inherent in litigation. It isunlikely that continued emphasis on rightswould be capable of resolving all the issuesbetween the parties. To take just oneexample, a patient may wish to continue tobe treated in the same hospital or it mayclearly be to his or her benefit for that tohappen: whereas an interest based processcould make this feasible, that may not bethe case where the focus is on rights.

(3) Management styles and practice and levelsof intervention will vary from one mediatorand model to another. Some mediatorsmay adopt a minimal intervention approach,providing a forum and facilitating com-munications and negotiations between theparties. At the other end of the rangemediators may tend towards greater inter-vention and directiveness; but in nocase are parties compelled to accept amediator's views. Most mediators fallsomewhere in between, using their skillsand management authority to help theparties towards resolution without imposingany personal preferences.

(4) Although many models of mediationinvolve a mediator working alone, there isalso a model of co-mediation in which twomediators work together as a team.Although this may be more costly thansole mediation, it does offer various advan-tages including the possibility of havingmediators from different disciplines - forexample, a doctor and lawyer - workingtogether.

Mediation applicable to medical disputesmight proceed as follows.

Stage 1 - Once appointed by both parties,the mediator (or the mediation organisationconcerned) liaises with the parties (or, ifdesired, their solicitors) in order to arrange ameeting and a timetable for the delivery andexchange of documents. The period to be setaside for the mediation meeting would dependon the complexity of the matter, but two dayswould not be an unreasonable initial estimatein many cases. If more time was found to beneeded it could by agreement be extendedbeyond the initial period. The mediation venuewould, if possible, be neutral, and two separaterooms should be available if required.

Stage 2 - Within an agreed period the parties'lawyers provide preliminary details of thedispute to the mediator and to one another, inthe form of written submissions and a bundleof documents, which would be likely to includemedical reports and other relevant documentsavailable to both parties, including thoserelevant to quantum. If legal proceedings havestarted copy pleadings are also furnished.Mediation cannot be started too early onceproceedings have started. There is a view thatmediation should await the close of pleadingsand the conclusion of discovery, but mostpractitioners of alternative dispute resolutionwould probably regard that delay as un-necessary as the machinery for the definitionand clarification of the issues and for thefurnishing of relevant documents can beframed within the mediation process itself.

Stage 3 - Where the issues are complex themediator may have a preliminary meeting withthe parties or their respective lawyers to agreethe timetable and ground rules for themediation.

Stage 4 - The substantive mediation meetingis then held. The mediator is likely to meettogether with the parties and their solicitors,with counsel if required, to discuss and explainthe process. Each party (or more usually,though not necessarily, their lawyer) will thenbe given the opportunity to make an oralpresentation of their case. Witnesses are notusually called, though the presentation mightoutline the broad nature of the evidence to beadduced if the matter were to go to trial.However, there is no reason why parties shouldnot be able to agree with the mediator forexpert witnesses to outline certain aspects insupport of a presentation if this is consideredhelpful. There is no cross examination, but ifthe mediator approves, questions to clarifyaspects may be asked.

Stage S - After the parties have met in jointsession and respectively presented their cases

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negotiations then take place, facilitated by themediator, either continuing in joint session,chaired by the mediator, or, more usually, in aseries of separate meetings (called "caucuses")which the mediator has with each party. Byassuring each party as to the confidentiality ofmatters discussed in the caucuses, except as theparty may agree to have disclosed; by using theoverview gained by this process; by shuttlingfrom one side to another; and by using variousskills and techniques the mediator helps theparties to narrow and resolve their differencesand to arrive at mutually acceptable settlementterms.

Stage 6 - The mediator may during thisprocess use any other strategy which he orshe may consider helpful. For example, themediator may wish to see the parties togetherwithout their lawyers, or vice versa; or mayallow an opportunity for explanations ordiscussion if appropriate; or discuss the matterwith respective experts, either separately or, ifso agreed, together; or seek additional infor-mation; or adjourn the mediation to enable theexperts to consider certain aspects or for anyother reason. The mediator is responsible formanaging the process, which may be done inconsultation with the parties; but the partiesremain responsible for agreeing the outcome(subject to the parameters stipulated by thedefence organisations, insurers, or indemnifyingauthorities when relevant).

Stage 7 - If a settlement is reached it willusually be recorded immediately as a bindingagreement or, when court proceedings arepending, as a consent order.Defence organisations, insurers or indem-

nifying authorities (or the Central Fund if andwhen applicable) will need to give authority forthe mediation to be conducted and for abinding settlement to be recorded. (In March1994 the National Health Service Executiveissued a consultation document Clinicalnegligence: proposed creation of a central fund inEngland. Under the accepted proposal, a fundwould be established to which affiliated trustswould make contributions from which thelarger compensation payments would be made.The fund would be administered by a specialhealth authority; and the proposal specificallyprovides that "fund managers should beconsulted before a claim is settled and shouldseek to dissuade trusts from settling at an earlystage cases which properly could be defended"and that they may at their discretion take overthe management of any claim.) As whenauthorising settlement negotiations, they mayprovide parameters for acceptable levels ofsettlement. Their representative may attendthe mediation meeting or may make alternativearrangements for the settlement terms to beconfirmed while the mediation is under way.It is not usually acceptable to conduct amediation, with its preparation and perhapssome days of meetings, if either side does nothave the authority to record a binding settle-ment if it is reached.The qualities, skills, qualifications, and

attributes needed for effective mediation ofmedical disputes are considered below.

MINI-TRIALThe mini-trial is not a "trial" at all, but ratheranother kind of assisted negotiation: it maybe seen as a form of evaluative mediation(see Brown and Marriott,4 Green,15 16 andWilkinson'7). In the mini-trial the parties havethe case presented to them by their respectivelawyers on an abbreviated non-binding basis,to enable them to assess the strengths, weak-nesses, and prospects of the case. In effect,the parties themselves become a tribunalinformally hearing the case (resulting in theCentre for Dispute Resolution in the UnitedKingdom calling this process the "executivetribunal"). With the benefit of these insightsthe parties with their legal representatives havean opportunity to enter into settlementdiscussions on a realistic basis.A key figure in this process is a neutral

adviser, who is usually someone with authorityin the field of the dispute, and who may chairand manage the process, asking questions ofthe presenters and clarifying points for theparties. If required, the neutral adviser maygive a non-binding opinion on the case. Theadviser may also adopt a facilitative ormediatory role in any settlement discussionswhich may follow.The case is usually presented in accordance

with an agreed procedure and timetable.Ordinarily no witnesses are called, but expertwitnesses might explain technical aspects orkey witnesses may explain parts of the case.Other devices may be used to illustrate thecase, such as charts, photographs, or films. Theneutral adviser helps the parties to understandand form their own views on the case beforethey rejoin their respective lawyers to considerand discuss what they have observed andlearnt.

OTHER FORMS OF ALTERNATIVE DISPUTE

RESOLUTIONThe various other alternative dispute resol-ution processes include, for example, theneutral fact finding expert, in which the partiesjointly appoint a neutral expert to investigatefacts and form a legal or technical view eitherabout certain specified issues or about all issuesgenerally and to make a non-binding report tothe parties which helps to inform any settle-ment discussions that may then take place."Med-arb" is a process in which the neutralattempts to help the parties to settle theirdispute through mediation; but if this isunsuccessful, he or she then makes a bindingdetermination as arbitrator. "Med-arb" hasdangers as well as advantages and needs to beselectively and carefully chosen and applied; itwould not seem to be appropriate in theordinary course of medical disputes. Goldberget al'8 quote Professor Lon Fuller as ques-tioning whether if the same person acts asmediator and then as arbitrator, in addition todamaging his efficacy as a mediator, he wouldnot have "fatally compromised the integrity ofhis adjudicative role." Alternatives have beendevised in the United States - for example,allowing parties the option of either proceedingwith the arbitration if the mediation fails or of

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opting out of it (Goldberg et al9) or treatingthe mediator as an advisory arbitrator whoseopinion is authoritative but non-binding.Another alternative dispute resolution

neutral role that has been successful in theUnited States is the early neutral evaluator, whois appointed by the court at an early stage. Heor she considers the documents, meets theparties and hears oral presentations, and thenexpresses a non-binding view on an off therecord and evidentially privileged basis. This isfollowed by helping the parties to consider howto conduct the litigation more expeditiouslyand economically, devising plans for con-ducting the discovery of documents, sharingmaterial data and expediting procedures, andhelping the parties to explore settlementpossibilities and alternative dispute resolutionprocesses which might be suitable for theresolution of the issues (see Levine20 21)*

No fault compensationNo fault compensation is not usually regardedas an alternative dispute resolution process, butit needs to be mentioned because many see itas an attractive alternative to adversariallitigation (see Spastics Society22 and RoyalCollege of Physicians23). Its basic premise isthat when a medical "accident" takes place thepatient is entitled to compensation withouthaving to prove negligence. In many of themore straightforward cases this is an enormousadvantage and leads to many claims beingsettled quickly and without lawyers. The majorproblems with such a procedure are, firstly,that the definition of an accident remains withpractitioners; secondly, the potentially highcost of compensating all accidents; and,thirdly, the fact that other issues such asaccountability are not dealt with.Sweden, Denmark, and Finland operate

compensation systems which purport to be ofthis type; however they are not truly "no fault"systems. In effect, as the accident must nothave been foreseeable, they are fault based, andthe arbitrary selection of accidents which meritcompensation is wholly unsatisfactory. In NewZealand a no fault system existed for manyyears, covering all accidents, including medicalaccidents. A major drawback from the patients'viewpoint, and indeed risk managementgenerally, was that accountability was ignored.In 1994 because of the cost the governmenttotally emasculated the system, leaving manyclaimants without remedy as the right to go tocourt had long since been abolished.

Mediator's role, attributes, skills andqualificationsROLE AND FUNCTIONS

Mediators combine several roles and functions,which may overlap. These include the mediatoras manager of the process, with responsibilityfor maintaining order and regulating theproceedings; as information gatherer, receivinginformation both directly through open andconfidential proceedings and also by watchingfor non-verbal signals and by getting data fromthird parties; as reality tester and evaluator,helping parties to appreciate whether their

ideas, perceptions, or proposals are realistic; asscribe, if required, helping the parties to recordany settlement terms; and as settlementsupervisor, if required, ensuring that terms ofsettlement are properly implemented andresolving any issues arising during the courseof implementation.

ATlIRIBUTESAttributes, the inherent personal qualities andtraits, rather than learned skills and techniques,required of mediators include the following.* Sensitive understanding of issues and arespect for parties' concerns

* Sound and judicious judgment* A creative and constructive response toproblems

* Integrity and trustworthiness* Flexibility and an ability to cope withchanging circumstances

* An empathetic approach* Authority to manage the process and an

ability to work autonomously.

SKILLS

Skills may be learned or intuitive, and those ofmediators include the following.* Communication skills, which include listening

to the parties and appreciating their views;observing non-verbal communications;helping the parties to hear and understandone another; asking questions effectively;refraining when necessary, by changing aframe of reference to give events a differentyet correct meaning or perspective; andsummarising properly

* Managing conflict and allowing the oppor-tunity for parties to ventilate their emotionswithout damaging the prospects of nego-tiating an effective outcome

* Encouraging negotiation and developing aproblem solving mode

* Managing the process in a firm, sensitive,impartial manner

* Facilitation of communications, discussions,and negotiations with a view to achieving anagreed outcome

* When working in an evaluative mode,expressing personal views without unduepressure and enhancing rather thandamaging the prospect of agreed resolution.

QUALIFICATIONSThere are no formal qualifications to act as amediator, but it is generally accepted thatspecial training is necessary and this is pro-vided by several alternative dispute resolutionorganisations, most of which will providemediator accreditation and some of which maymaintain a panel of approved neutrals.

Mediators bring into the process theirpersonal attributes and skills; their specialisedtraining; their experience as neutrals; and, ofcourse, their own individual professional,business, or personal backgrounds. There aremediators from a wide range of occupationalbackgrounds, including law, medicine, ac-countancy, management, industry, social andcommunity work, and counselling and othermental health fields.

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Two kinds of expertise can be broughtinto the mediation process: one is substanceexpertise, which is the specialist knowledge ofthe subject matter of the dispute, and the otheris process expertise, which is proficiency in andunderstanding of the mediation process itself.Given the choice, process expertise must be themore important in choosing a mediator as a

competent expert in mediation can generallyadapt to dealing with different kinds ofdisputes; but if a mediator has both process

and substance expertise, that might be an idealcombination.

ConclusionThe present response to a patient's misgivingsabout any particular treatment or an assertionof professional error, as well as the wholesystem of managing and resolving any disputesthat may then arise, require a fundamental re-

examination. This system lends itself to an

adversarial and potentially hostile confrontation.There are several contributory reasons, as

shown in the box.

These and other factors all combine to createa situation in which the mere hint of"negligence" may lead to a knee jerk reactionof determined defence.This situation could be reviewed at different

levels. At a fundamental level the wholequestion of negligence and causation could bere-examined. This has already been mootedwith the notion of no fault compensation andthe proposals of the Action for Victims ofMedical Accidents and Association ofCommunity Health Councils in England andWales for a health standards inspectorate; andthe last word may not yet have been spoken on

these basic issues. At another level theadversarial procedure could be re-evaluatedand new procedures developed to improve theconduct of medical disagreements and claims,from their inception to their conclusion. Thereis no reason why representatives of medicalgroups, patients' groups, and other interestedgroups should not be able to consult with one

another and devise improved procedures toreplace or supplement existing ones. To some

extent this is already happening. This couldwiden and enhance resources for resolvingissues constructively while respecting theconcerns of all parties and preserving allexisting safeguards, such as the right to trialwhere other options fail.

Meanwhile, practitioners, patients, andmanagers do not need to wait for fundamentalorganizational changes before they startimplementing ways ofwidening their resourcesfor dealing with medical disputes. As indicatedhere, processes already exist and are availablein appropriate cases to allow parties to try toresolve their differences without proceeding tolitigation or to supplement an adjudicationwith a parallel procedure for mediation,dispute management, or other third partyassistance (box).

Mediation and other alternative disputeresolution processes are not intended toreplace litigation, which continues under thepresent system to have an important role whena third party adjudication is necessary. Theydo, however, provide a much wider range ofalternative processes than mere confrontation.It has been said of litigation that, "If the onlytool you provide a person with is a hammer,you should not be surprised if all he can see are

nails." Alternative dispute resolution offers a

toolkit which preserves all established optionsbut allows other possibilities to be introduced

Reasons for adversarial nature ofdisputesNeed to establish negligence by the practitionertransforms a clinical occurrence with negativeimplications into a compensatable claim.Claims may be asserted, or be perceived as beingmade, in a contentious way.Professional culture does not preparepractitioners for the possibility of lapse or erroror how to respond.Finding of negligence could have adverseprofessional implications for practitioners.No opportunity to consider the clinical event inan impartial and objective way.Economics often control the strategy oflitigation, which commonly requires theclaimant to overcome many obstacles toestablishing a case.

Lawyers have established strongly partisanapproaches and are grouped into thosesupporting claimants and those defendingpractitioners, with little room for middle ground.Often medical experts too develop stronglypartisan approaches.The language and approach of litigation have aneffect of spiralling mutual antagonism upwards.Emotions may understandably run high on bothsides.

Some alternative dispute resolutionorganisations and practitionersThe Chartered Institute of Arbitrators,International Arbitration Centre, 24 AngelGate, City Road, London EC1V 2RS(tel 0171 837 4483) offers an arbitration schemewith a mediation option.The Centre for Dispute Resolution (CEDR),100 Fetter Lane, London EC4A 1DD(tel 0171 430 1852) has a specialist medicalsector working party for medical negligence andother healthcare disputes.ADR Group, Equity and Law Building,36-38 Baldwin Street, Bristol BSI 1NR(tel 01179 252 090), network of lawyermediators in the UK, provides mediators forvarious kinds of disputes, including medicalnegligence.The British Academy of Experts, 90 BedfordMansions, Bedford Avenue, LondonWC1B 3AE (tel 0171 637 0333) maintains aregister of mediators.Mediation UK, 82a Gloucester Road,Bishopston, Bristol BS7 8BN (tel 01179 241234)is an umbrella organisation whose memberscover a wide range of mediation activities.

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into the resolution of disputes. In medicaldisputes, in particular, it allows for thepossibility of incorporating into agreed groundrules any permutation of fact finding,explanation and dialogue, facilitation withcommunications, assisted negotiation, neutralexpert settlement guidance, accountability,and any other factor that parties might considerto be important. Settlement terms can, andsometimes need to, include not only financialaspects but also a form of words that partiesfind mutually acceptable, in a way thatconventional litigation cannot achieve.

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5 Kendall J. Expert judgment. Solicitors Journal 1990;134:1430-1.

6 Kendall J. Let the experts decide. Arbitration and DisputeResolution Law Journal 1993;210:210-4.

7 Kendall J. Dispute Resolution: expert determination. London:Longman, 1992.

8 Campbell v Edwards [1976] 1 WLR 403.9 Nikko Hotels (UK) Ltd v MEPC plc [1991] 28 EG 86.10 Jones v Sherwood [1992] 2 All ER 170.1 1 Mills MP. Mediation is ombudsmanry. In: Beyond borders.

Proceedings of the 19th annual conference of the US Societyof Professionals in Dispute Resolution, Washington, DC:1991:98.

12 Birkinshaw P. Complaints mechanisms in administrativelaw: recent developments. In: Mackie K, ed. A handbookof dispute resolution. London: Routledge, Sweet andMaxwell, 1991:43.

13 Ackland AF. A sudden outbreak of common sense: managingconflict through mediation. Hutchinson, 1990.

14 Bevan A. Alternative dispute resolution. London: Waterlow,1992.

15 Green E. Growth of the mini-trial. (US) 9 Litigation 12.1982.

16 Green E. Mini-trial handbook. New York: Center for PublicResources, 1982.

17 Wilkinson JH. A primer on mini-trials. In: Donovan leisureNewton and Irvine ADR practice book. New York: Wiley,1990:171-80.

18 Goldberg SB, Green ED, Sander FEA. Dispute resolution.Boston: Little, Brown, 1985.

19 Goldberg SB, Green ED, Sander FEA. Dispute resolution.Boston: Little, Brown, 1987.

20 Levine DI. Early neutral evaluation: a follow-up report.Judicature 1987;70:236.

21 Levine DI. Early neutral evaluation: the second phase.Journal ofDispute Resolution 1989; 1.

22 Spastics Society. Paying for disability: no fault compensation- panacea or Pandora's box? London: Spastics Society,1992.

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Alternative dispute resolution mediation · Alternative dispute resolution andmediation administratively. When disputes did arise a tribunal under the High Court would adjudicate,