The Mediation Times

 

When mediation may not be right for the case

by Amanda on February 8, 2010

Not so long ago we were encouraging everybody to mediate in every case. We “educated” people on how to look at cases from the “why not mediate” point of view. We wanted people to understand how relevant mediation is for all types of cases.

I thought about the appropriateness of this approach again last week as I read a report in The Independent on an Employment Tribunal involving a senior hospital consultant who was suspended “after repeatedly raising concerns about the health and safety of patients”. He was strongly opposed to the reduction of nursing staff and specialist facilities at his hospital and warned the trust that delayed review of cancer patients meant they had a “very good case of negligence against the trust.”

The safety of patients is a matter of increasing concern as budgets are cut and costs are revisited. The pressure on consultants is enormous in dealing with the conflict between clinical practice and financial management. For the hospital trusts, there is a conflict between the expectations of the public that the best treatment should be available for everyone and providing the treatment with the funding available. Consultants carry great personal risks from the consequences of a “mistake or delay” and they do so with their reputations and ability to earn a living.

In the case reported in The Independent, and from the details given, it would appear that this was a case like many others I have mediated. The outcome of the Employment Tribunal is of real public interest and the existence of a judgment will no doubt have an impact on similar cases in the future.

So the question is: should we take account of the public interest and judge that some cases must be heard in a tribunal or court? Or does every individual and organisation, whoever they may be, have a right to choose private dispute resolution?

If this consultant had said to me that he didn’t want to try mediation because he wanted the matter to be made public, I would have replied that if that was important to him then there was nothing to stop him from including that in his negotiations. The fact that a mediation is confidential does not prevent the parties from agreeing to make a public statement and that public statement can include anything that they agree upon.

There are real benefits to mediating even matters of public interest which cannot be achieved at tribunal or trial and they have to do with the particular needs of the parties in relation to the specific matter and the circumstances surrounding that matter. I have often assisted parties in drafting agreed changes to policy and indeed joint press releases on outcomes.

I can see the potential for achieving a rapid change in practice when there is a judgment to refer to. There may be some out there who are very thankful to have such a judgment and will wave it in front of reluctant managers as a warning.

What do you think? Are there some cases which should not be mediated as opposed to cannot be mediated?

2 comments
Adam
Adam

Amanda:

*Scribbled down a note about including public stmts as part of the negotiations, b/c clients frequently tell me that others are watching and feel that negotiating sends the wrong message - opens them up to more complaints.

*Often, this strikes me as posturing from someone who does not really want to negotiate in the first place.

*But, the public statement gives me something to offer to get them thinking about creative negotiating. Thanks.

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