Here are the reasons that co-mediation, described in a earlier post, with a physician and facilitative mediator can improve both the process and outcome compared to other approaches, and particularly to the quagmire of litigation:
• First and foremost, this approach can effectively address perhaps the most critical element of any injury claim, and that is ensuring that legitimate claims are compensated reasonably and fairly, non-meritorious claims are identified and addressed accordingly, and the parties to the process feel that their voices have been heard and their interests met. Mediation is a well-established means for accomplishing just that. The bedrock of mediation is “self-determination”, meaning that the process is entirely voluntary and non-coercive, such that the parties and counsel themselves maintain control throughout.
• The physician as neutral is a component that allows for objective review of the medical record through engagement of patient advocates and clinical parties in a manner that critically delves into the medicine at issue, winnowing out claims that do not present reasonable grounds for compensation. This is a missing ingredient in the current process, where the battle of adversarial experts leads to arbitrary and unpredictable results.
• The professional non-physician mediator enables a process geared to the needs of the parties. This presents a complex amalgam of issues, above and below the surface, that can be dealt with effectively through a dynamic, interactive process such as mediation. There may be ways to resolve a claim other than through compensation, such as acknowledgment of, and even apology for, error to satisfy the emotional needs of patients and their families. Also, providers, who are truly interested in avoidance of error so as to improve safety and outcomes, have access to a process through which the opportunity for learning, not nearly as available in litigation, can become as important as successful defense of a claim.
• Costs and time to resolution are reduced dramatically. The considerable waste in the present system can be all but eliminated for cases that opt-in to this process, with the opportunity to opt out (and thus present no risk) if the mediation does not produce the desired results. The court system is always there as a backstop.
• Will all the players be willing to participate? That is a key question, the answer to which does require further exploration with them directly. The short answer is: only if their interests are definitively considered and met. In the case of patients, that means providing a process alternative to the enduring frustration of the court system that offers fair and prompt compensation for legitimate claims. For medical providers, including hospitals who increasingly are employing physicians in the evolving healthcare landscape and which often are now self-insured, costs are reduced. Risk management and avoidance, which comes from understanding and addressing the cause of error, can become more proactive rather than defensive. Early mediation including a neutral physician provides an opportunity to work with the patients that the providers care for, which may seem altruistic, yet doing do offers the opportunity for a paradigm vastly superior to the current system. While plaintiffs’ and defendants’ counsel, whose clients’ needs are served, should not be a significant impediment, we do have to address the reality that they often control the current process and need to be convinced through the opportunity for faster, fair resolution for their patient clients and ongoing satisfaction and improved relationships with medical clients.