Name – CHANDA KUSHWAHA
College - O.P JINDAL GLOBAL LAW SCHOOL
Mediation facilitates and encourages inventive problem-solving, allowing for the discovery of innovative resolutions to problems. Mediation and arbitration facilitates communication between the parties. In mediation and arbitration, there are no hard and fast rules other than those agreed to by the parties or asked by the mediator to encourage productive discussions.
Mediation in many scenarios preferred over litigation for the resolution of medical malpractice claims in healthcare sector. Relationship preservation, enhanced communication to support excellent treatment, and cost savings are just a few of mediation's many benefits. The collaborative and cooperative nature of mediation expedites the resolution of problems between patients, physicians, and other health care providers. If the parties are able to reach an agreement, the solutions may include both financial and non-financial remedies. Due to its versatility, mediation provides more choices for resolving disagreements than traditional litigation.
MEDIATION AND ARBITRATION OF CIVIL DISPUTES.
In order to better understand the process and function of mediation in the health care system, we will begin by discussing medical malpractice and medical error. A medical error is a mistake, accident, or unanticipated occurrence that may or may not result in patient harm in the context of health care. No purposeful or negligent actions intended to cause direct or indirect harm to the patient are deemed medical errors. The healthcare industry is dynamic and fast-paced, necessitating "high-level technology requirements, the need for quick response times, long hours, and constant ongoing operations management." The influence of mediation on the health care system must be evaluated in light of the alternative dispute resolution arena, litigation. It is essential to resolve health care disagreements and their repercussions.
One of the disadvantages of the legal system is the inadequacy of tort litigation to prevent physician malpractice. Thirdly, "bad influence on the doctor-patient relationship; substantial emotional and financial costs incurred by the litigants; and the protracted, ineffective, and expensive litigation procedure.
Moreover, litigation typically fails to resolve the conflict's central issue. Even though litigation can extend for years, the primary points of contention are not always settled. 36 Miscommunication and mistrust are frequent reasons for disagreements between patients and healthcare professionals. As a result of these issues, disputes and malpractice claims may occur. Alternative dispute resolution (ADR) is a feasible alternative to litigation in the view of many scholars. According to the study, "it saves time, money, and resources because it involves the parties more actively and makes less use of social resources." . "The ideals of our civil justice system are antithetical to those of medicine," argued one practitioner. Litigation has nothing to do with the healing process. Healthcare practitioners and clients benefit from improved communication, teamwork, and collaboration as a result of mediation.
Mediation facilitates the provision of safe and effective health care by facilitating communication and fostering cooperative behaviour. Communication in health care settings aids in the prevention of errors that might result in negative outcomes. The parties are able to communicate information in order to take corrective action. In mediation, collaborative settlement agreements are sought through collaboration. In the majority of circumstances, a mediated settlement is not legally binding. As a result, the agreement is more likely to be adhered to because it was reached through dialogue. There are numerous issues that have been addressed and opportunities for the parties to prepare arguments they could use in court, even if they choose not to litigate. Even if it does not result in a resolution, the mediation process increases efficiency. Financially and administratively, therefore, participation in mediation may be helpful.
II. MEDIATION AND ARBITRATION IN HEALTHCARE DISPUTES IS BENEFICIAL.
Focus will be placed on mediation's capacity to improve communication and relationships between parties, as well as its capacity to cut costs and enhance the efficiency of the healthcare system.
A. Management of Conflict and Interpersonal Considerations
In many cases of medical misconduct, there is a significant degree of emotion, making mediation a much more rewarding resolution than going to court.The subjective sickness experience of a patient and his or her family can frequently make it difficult for them to view a medical situation objectively. It is possible for physicians' reactions to patients' requests to be interpreted as "lack of concern." The mediation technique permits the doctor to freely discuss the rationale behind the selection of diverse therapeutic options. Typically, physicians perceive malpractice allegations as personal attacks. Mediation is a superior method for addressing his or her feelings of inadequacy or incompetence. In such an emotionally charged environment, mediation facilitates communication.
B. Cost-Savings and Expenditure Efficiencies
The cost of litigation is astronomical. Costs, time, and emotions associated with attorneys are shared by both patients and physicians. Due to the high expenses of litigation, a large number of potentially valid claims for minor medical misconduct are not brought. Through mediation, many of these costs can be avoided, making it a more cost-effective option. Because there are no rules of evidence or typical court requirements, the cost of discovery and other procedural steps can be reduced.
III. STUDIES AND MOVEMENTS IN MEDIATION AND ARBITRATION
Mediation, a flexible method, permits participants to express themselves freely and generate innovative solutions. According to one persuasive argument, "institutional bias in favour of short-term financial savings tends to inhibit the long-term viability of these programmes." The effect of institutional mediation programmes on health care has been the subject of investigation. The long- and short-term implications of implementing mediation in the context of health care will be discussed here.
Institutionalizing mediation has many advantages. A well-executed programme sponsored by an institution can aid in legitimising the mediation practise. Through these public service messages, several individuals gain knowledge of mediation and other conflict resolution techniques. To resolve a dispute or conflict. Most court-sponsored mediation courses are designed to address a particular judicial need. The prospect that mediation initiatives supported by health care institutions will serve their own self-interests" is cause for concern for health care institutions." Patients may be less likely to trust health care organisations if they perceive mediators have a financial interest to do so .As a result, the credibility of medical mediation could suffer, as would its capacity to enhance patient outcomes.
The uncertainty as to whether or not formality will have a negative impact on the mediation process is one of the primary issues with institutionalising mediation. Mediation that is imposed by law or directed by a court, government agency, or arbitrator; or mediation in which the parties have agreed in writing to mediate. Efforts to standardise mediation impact some statements and other disclosures made during mediation. In addition, provides optional model guidelines requiring mediators to disclose potential conflicts of interest to the parties and their credentials upon request. There is also the question of whether attorneys are superior at representing clients in mediation. It is possible that this additional standardisation requirement is unnecessary.
IV. POTENTIAL EVALUATION OF HEALTH CARE THROUGH MEDIATION AND ARBITRATION
It is obvious why mediation is necessary for settling health care disputes. Even the United States Congress has acknowledged the importance of ADR in implementing health reform. & Mediation is frequently used for Medicare reimbursement disputes, Medicare and Medicaid quality-of-care problems, as well as medical malpractice and bioethics claims. Even though the healthcare system is famously complex, mediation can be adjusted to any of these scenarios.To preserve the freedom to communicate and explore options, mediation must remain a voluntary and flexible tool. Mandatory mediation is an effective approach to spread the news about mediation quickly, but it is not a viable long-term strategy. Hospital managers and staff must be trained on the mediation process in order to successfully convey to patients the benefits of the programmes they administer.
Medical malpractice ADR or mediation systems should: (1) compensate patients harmed by malpractice; (2) encourage doctors and hospitals to eliminate medical negligence; (3) safeguard the doctor-patient relationship; and (4) maximise cost-effectiveness. To be effective, the health care dispute resolution system must achieve four primary objectives. In addition, it is crucial to design a framework that expedites the resolution of the majority of disagreements. Mediation is an effective method for settling the very complicated disputes that arise in the healthcare profession. The mediation process, which transcends normal adjudication methods, might generate creative solutions to the parties' difficulties. It encourages cooperation and transparency. Errors and negative events can be prevented in the healthcare business if there is excellent communication and teamwork.
ALT. DiSP. RESOL. § 7.1 (2d ed. 2003).
James W. Reeves, ADR Relieves Pain Of Health Care Disputes, 49 DIsP. RESOL. J. 14, 17 (Sept. 1994).
Rita Lowery Gitchell & Andrew Plattner, Mediation: A Viable Alternative to Litigation for Medical Malpractice Cases, 2 DEPAUL J. HEALTH CARE L. 421,423 (1999); Reeves, supra note 12, at 17.
Sheea Sybblis, Mediation in the Health Care System: Creative Problem Solving, 6 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL.