The Power of Mediation

Thinking of going to Court to settle a long-standing quarrel when you know you’ve been badly wronged? Think again. Court cases can be very time consuming, emotionally unsatisfying and expensive. The answer may lie in mediating a result both you and the other party are happy with.

If that sounds like the impossible dream, consider the plight of the patient who through no fault of his own almost died as a result of botched surgery yet through mediation amicably settled a long-standing and bitter quarrel with his surgeon, both doctor and patient parting on good terms.

In trying to repair a mistake made earlier during prostate surgery, doctors used staples, not normal in the circumstances and giving rise to more complications which required the intervention of a specialist surgeon.

Before starting, the specialist asked to see the patient’s previous medical notes but unfortunately those notes showing staples had been used to repair his pierced bowel were missing. The specialist went ahead without knowing about the staples which almost caused the patient to die as a result of further complications and resulting in more remedial surgery until eventually the staples were found and the patient’s problems fixed.

Not surprisingly, the patient wanted compensation so he made a claim to ACC saying that the specialist was negligent for not finding the staples. ACC accepted his claim saying there was medical error and which resulted in the case going to the Medical Council for investigation into the competence of the specialist.

We advised the specialist that the ACC decision appeared to be incorrect. After carefully considering all the facts, the Medical Council agreed that the ACC error finding was wrong because the specialist had taken all reasonable steps to find the medical notes that recorded the earlier use of staples. The Council found the specialist couldn’t have predicted the use of staples because they weren’t commonly used in that kind of bowel repair surgery.

The ACC finding was appealed and after an emotionally charged hearing the error finding was overturned in favour of a finding of “systemic failure” which meant the patient was no longer entitled to compensation. The patient then lodged a complaint with the Health and Disability Commissioner who eventually referred the case to mediation.

Mediation is a voluntary process with all parties trying to resolve a dispute by mutual agreement with the help of a trained mediator. It is an informal process but requires respect to be shown for others points of view to find common ground rather than concentrating on the negatives.

After protracted and futile attempts to get the hospital and/or specialist surgeon to acknowledge responsibility, or in receiving any compensation from ACC, the patient not surprisingly became distraught with the injustice of his case. He told his story to the news media which resulted in distress and embarrassment to the specialist after wide media coverage.

During the mediation process at which both the patient and the specialist surgeon were given assistance to present their arguments, the dispute was finally and successfully resolved to the satisfaction of all parties. One of the understandings reached meant that neither party could discuss the actual terms of the mediated settlement publicly but it is clear that everyone was happy with the outcome.

The mediation process provided an appropriate forum and environment for the patient to “get everything off his chest” and to have it addressed and acknowledged.

The benefit of mediation is graphically evident in the case outlined. Prior to mediation there had been three years of bitter wrangling. At the start of the mediation process the parties were understandably antagonistic and the atmosphere icy to say the least. At the conclusion they parted friends in an atmosphere of respect and understanding.