• Nirav Sudhir Padia

ARBITRATION, MEDIATION OR NEGOTIATION IN MEDICOLEGAL ISSUES- A MEDICAL DISPUTE RESOLUTION


Introduction:

Alternative Dispute Resolution (ADR) refers to methods used to settle issues without heading to the courts. As the medical care system and wrongful death rates remain high, there is increasing interest in strategies such as early apologies, mediation, and medical arbitration. In a somewhat more comprehensive dialect, ADR describes the way in which disputes are resolved without court action. These methods may involve negotiation, arbitration or mediation. ADR models are usually more speedy and cheaper. As a consequence, ADR is often used in conflicts which would have the potential to contribute to litigation. Such disputes may involve labour disputes, medical negligence charges and divorce settlement.


Different types of alternative dispute resolution:

Mediation: This type of ADR helps make use of a fair and balanced third party individual recognised as a mediator. The mediator doesn't even have the right to determine on any end result of the dispute or to force the disputed entities to agree on the same. The mediator wanting to work with the disputed entities is trying to find aggregate information, which is usually non-binding. Mediation can be required by the courts, if required, but the entire process is optional, giving the parties to the conflict the right to refuse the arrangement. Mediation is entirely private and the organisations will monitor the process. Disputing groups will also have access to arbitration following settlement if they do not adhere to the arrangement.


Arbitration: This type of ADR is a bit like a non-formal tribunal that requires use of an independent third party. A judgement shall be made by the selected third party after it has been heard by either side. As decided by the contested bodies, this decision is non-judicial or binding. This study was considered definitive as it is binding and can be lawfully executed. Regardless of the arbitrator being a practicing coordinator, the arbitration procedure is not known to be formal, since most of the rules on proof don't really apply here.


Negotiation: This form of ADR does not require any neutral third party to support the contested groups in the negotiation process. The groups are working closely to find a consensus. During the talks, the contested individuals can ask their attorneys to represent them.[1]


The Medical grounds for an ADR:

Medical conflicts sometimes occur – or at least intensify – due to inadequate communication. Recently, it has been stated that one in five allegations against physicians results from inadequate contact. Studies reveal that in many cases, the key reason a patient sues a doctor is not to demand redress but to figure out what went wrong. Litigation shall not facilitate transparent contact or disclosure.Instead of seeing arbitration and mediation as an 'alternative dispute resolution, the word 'appropriate' dispute resolution should be used. Instead of seeing ADR as an alternative to litigation, courts should encourage a mix or hybrid process that is better tailored to a specific conflict.

The general points in support of ADR, in particular mediation, is whether they encourage conciliation, enable innovative resolutions and enable the participants to offer information instead of just narratives. An experienced medical negligence mediator explains it as providing a "therapeutic solution to the issue, giving the parties an opportunity to clarify or explain, apologise or forgive, and to close and re-establish relationships.


Mediation is best tailored to conflicts where the parties have a stake in a continuing partnership. A typical example of this is family law, where divorced parents have a shared interest in managing their relationship regarding child care and support problems. However in psychiatric disputes, the partnership has always simply terminated, because there is little hope in maintaining or remediating it. Patients want clarification and reimbursement, while clinicians – and the institutions in whom they are associated – want to defend their reputation and image and vested interests. Mediation can help to prevent a war-footed medical conflict to sustain a friendship. This can lead to improved decisions for both the doctors and patients, both in terms of settling the conflict and promoting patient safety.


Medical conflicts possess unique characteristics that make them especially challenging for mediation. First, they often contain complicated medical facts and causes, making it more difficult for an inexperienced mediator to do so. Second, medical disputes may involve a number of stakeholders: the transfer of medical personnel from a doctor to a nurse consultant, the insurer, the hospital administrator, the patient or the next parent and the lawyer. Each of them has an unique viewpoint, relating to professional instruction or organizational arrangement, which makes a meeting of minds demanding. Thirdly, there is indeed an imbalance of power in the dispute between both the health care provider and the patient. Fourthly, due to the sensitive nature of health records and the personal security of the data, integrity and anonymity issues are different from those in other disputes.[2]


The Agenda


1. The current system for the resolution of medical negligence conflicts:

In general, claims for medical negligence in India are resolved by the Consumer Protection Act and the Civil – Tort Litigation Act based on the provisions of the Consumer Protection Act 1986. In developed nations, one of the survey data in a particular country demonstrates that 64 percent of people survey respondents favoured having medical malpractice disputes settled by a third party instead of a trial or a judge.The method of the judicial system to settle medical negligence cases also inhibits attempts to increase patient care and minimise medical error. Often providers order checks and protocols to prevent second-guessing and suing. The legal process is unfavourable, expensive, time-consuming and sluggish. Our analysis indicates that, even under the Patient Protection Act, the litigation process is very long and takes at least 6 to 8 years for any medical negligence case to be resolved in the Indian Legal System.



2. Special concerns in cases of medical neglect:

Medical negligence cases are usually settled by the Consumer Protection Act and are founded on the terms of the Consumer Protection Act, 1986. The plaintiff, i.e. the patient, wants to show that the doctor is negligent with the aid of consultants in the field and medical literature. It is a daunting job to obtain evidence as well as to get the advice of medical professionals. Apart from the uncertainty in the legal process, it has often been expensive.


3. Mediation of conflicts relating to medical misconduct:

The chosen alternative Mediation is an important method of interacting with disputes relating to medical negligence. It allows for the settlement of conflicts without establishing a hatred between the two sides. It is of two forms, both obligatory and optional. Mandated by law mediation can be by arrangement between two parties or by order of the judge.


4. Arbitration of issues about medical malpractice:

Arbitration is an important way of dealing with disputes related to medical errors. It requires an arrangement between both the hospital as well as the patient about the arbitration proceedings in the event of any medical disagreement at the time of sentencing to the hospital for treatment.


Conclusion:


Patient welfare requires a framework strategy that pays particular attention to systemic rather than human players. The research on institutional responsibility emphasizes the importance of organization's structure and the restrictions on persons acting within the organizational framework. Medical conflicts include regard for patient confidentiality and care of the patient as an equal participant in the management of his or her health conditions. The willingness of people on either side of the conflict to convey their arguments in a non-confrontational setting is safe. Common among both structural solutions for enhancing patient safety and tailored strategies for coping with conflict resolution are effective coordination and openness, which are essential to recognising risks in the health service and retaining the trust implicit in the doctor-patient interaction.


Arbitral award seen as less satisfactory and much less productive than mediation, but also more time-consuming and cost-effective than litigation. The established regulatory atmosphere is beneficial to ADR, with numerous court rulings maintaining also before the arbitration agreements. ADR has the ability to help change the existing culture of torture, minimise costs and improve the satisfaction of all sides.



[1] AmyR Jones, 'Introduction to the Concept of Alternative Dispute Resolution' (Introduction to the Concept of Alternative Dispute Resolution, 2019) <http://www.legalserviceindia.com/legal/article-2308-introduction-to-the-concept-of-alternative-dispute-resolution.html> accessed 24 November 2020 [2] Kumaralingam Amirthalingam, 'Medical dispute resolution, patient safety and the doctor-patient relationship' (US National Library of Medicine National Institutes of Health Search database, December 2017) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5917052/> accessed 24 November 2020



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