2012 Hospital Authority Convention
ABC of Mediation
Paul BS Lai
Department of Surgery, PWH
Definition of mediation
Mediation can be defined as
the process by which the
participants, together with the
assistance of a neutral third
person or persons,
systematically isolate disputed
issues in order to develop
options, consider alternatives,
and reach a consensual
settlement that will
accommodate their needs.
( Folberg and Taylor, 1984)
Adopted from YouTube - 調解精讀班 by Edwin Choi (2011. 07. 31 星期日檔案)
Conflicts vs. Disputes
• Conflicts refer to divergence of interests between
individuals or groups, incompatible goals and
opposing behaviors
• Disputes refer to serious disagreement between
individuals or groups
– a conflict may not necessary lead to a dispute, but a
dispute would always have some conflicting elements
– a dispute arises when a party which perceives an injurious
experience notifies the party who he/she believes to be
responsible and claims a remedy, and such claim is
rejected by that party
Medical disputes
• Breach of trust and faith
– doctor-patient relationship builds on trust and
feeling of confidence
• Strong emotion unleashes when such trust is
breached
– when there are undesirable treatment outcomes,
emotional responses would easily lead to mixing
up between accidental harm and deliberate harm
• Harms are often irreversible
Medical negligence claims in the Court
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Medical cases could be highly complex
High transactional costs
Involvement of expert witnesses
High compensation costs
Individual defense on their reputation within
the profession
• Might affect their license to practice
Essentials of mediation
• Voluntary and confidential
• Decisions are made by parties and the mediator only
facilitates the process
• Non-judgmental, not exactly about right or wrong
• Mutual needs and interests are emphasized
• Focus on perception and communication (not evidence) and
on present and future (not the past)
• Process is more flexible, depending on the needs of the
parties
• Aims at achieving “win-win” situation
Mediation
Litigation
Who makes decisions?
The parties
The judge
Who controls the
process?
The mediator
The judge
Role of third parties
Independent,
impartial facilitator
To act as advocates
and discredit the
opposition
Involvement of the
parties
Full participation in
deciding on issues,
creating, evaluating
and agreeing options
Lawyers as
representative to
participate on parties’
behalf
Focus
On needs of parties,
not on fault finding
On facts, establish
fault and liability
Duration of the process
Usually expeditious
Usually prolonged
Types of outcomes
Win-win solutions
mutually accepted
Win-lose result based
on legal precedent and
consideration of
evidence
DOJ Practice Direction 31
• Came into effect on 1 January 2010
• The Court has the duty as part of active case management to
further the objective of facilitating the settlement of disputes
by encouraging the parties to use an alternative dispute
resolution procedure (ADR) if the Court considers that
appropriate.
• The Court also have the duty of helping the parties to settle
their case.
• The parties and their legal representatives have the duty of
assisting the Court.
Report of the Working Group on Mediation
DOJ Feb 2010
Recommendation 9
1)
2)
3)
4)
5)
6)
Workplace and employment
Intellectual property
Banking and financial services
Medical malpractice and healthcare
Child protection
Environmental, urban planning, land use and redevelopment
Process of mediation
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Preliminaries
Mediator’s opening statement
Parties presentations
Mediator’s summaries and identifying areas of agreement
Agenda setting: identification of issues and the orders of
them
First joint session: negotiation and decision making
Private session: “Caucus”
Subsequent joint and private sessions
Final decision and recording
Closing statement and termination
Skill set for a mediator
1.
2.
3.
4.
5.
6.
7.
8.
Communication skills
Facilitation skills
Reframing skills
Empowerment techniques
Negotiation skills
Mediation strategy
Handling of deadlocks
Some understanding of law and legal proceedings
It’s all about communication!
• Communication skills
– Both verbal and non-verbal
– Paraphrasing, perception checks, summarizing, questioning
• Facilitation skills
– Acceptance, reflection, reassurance, leading, active listening
• Reframing skills
– Reframing a conflict, reframing an issue and reframing of parties’
statements
What is reframing?
• Reframing is the skill of restating the underlying
interests, needs and wants in positive terms to
help acknowledge that the problem was heard
and understood.
• Reframing serves to de-escalate the conflict, to
establish common ground, to focus on the future,
and to acknowledge feelings.
• Be careful not to trivialize the problem and be
conscious about the words you choose and your
body language.
Reframing of statements
Accusation and hostility
Focus on the patient
Focus on the past
Use neutral language
Focus on the patient’s problems
Focus on present and future
• To turn negative perception into positive
perception
• Reframing the context
– Changing the context means changing the meaning
The power of words
01:48 video from http://www.youtube.com/watch?v=Hzgzim5m7oU
Active Listening
Lots of eye
contact
Treat speaking
party as “king”
Very
focused
Active listening with empathy
• People always like to be listened
• Rapport can be established easily if people
note that you are listening to their statement
and feeling
• One can demonstrate their caring attitude by
some non-verbal skills while listening
• Only through careful and attentive listening,
the mediator will have a better grasp of the
individual’s real needs
Toolbox for mediator for medical
negligence cases
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Positive attitude and positive thinking
Planning before mediation process
Get your skill set ready
During the mediation process:
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gain mutual understanding
active listening with empathy
acknowledge emotion with empathy
help create realistic win-win solutions
Hurdles we have for mediations for HA
(1) The claimants: some observations
• Claimant has fixed mind about the incident and uses
the mediation session as an opportunity to insult
• Unrealistic requests not supported by own lawyer
and medical expert
• Claimant did not attend the mediation session and
appoint counsel to attend on their behalf
• For Legal Aid cases, claimants opt for long battle at
the Court instead of quicker resolution through the
mediator
(2) Hurdles for patients or relatives
• Fixed idea about the “evil-ized” healthcare
workers
try to make sure other patients would not be
harmed again
• Refusal to pass the “reality tests”
• Compensation for irreversible harms are
difficult to quantify
(3) Hurdles for doctors
• Refusal to admit that an individual has done
something wrong
“being negligent” vs. “room for improvement”
• Diffusion of responsibility
in HA, patients are managed by “teams”
difficult to pinpoint an individual in the whole care process
• Those being sued seek to rely on standard
procedures to defend position or to clear their
names
(4) Limitations within the HA
• Currently under HA, compensation is possible
only if medical negligence is established
• Delays in meeting with patients or relatives
may give an impression that HA is “concealing
information”
• Doctors being complained against seek to rely
on standard procedures to defend position or
to clear their names
Why healthcare professionals in the
HA need to learn mediation?
Complaints and Communication
Complaints substantiated after peer review
Misapplication of clinical skills
Failure to investigate or treat
Attitude and behaviour
77.9%
Breakdown in communication
0
20
40
60
80
100
Percentage of Cases (n = 215)
Donaldson LJ, Cavanagh J. Clinical complaints and their handling: a time for change? Qual
Health Care 1992;1:21-25
When something untoward happened….
• Skills of mediation would be very useful,
particularly for the initial phase of handling
complaints
• “First touch effect” is important!
• Frontline doctors cannot stand behind PRO
colleagues and disappear from the scene
See through it…….the needs behind
Hi , Maslow’s triangle still holds
Mediation training activities at HA
“… the only ones among
you who will be truly
happy will be those
who have sought and
found how to serve.”
~ Dr. Albert Schweitzer
(1875 – 1965)