2012 Hospital Authority Convention. ABC of Mediation. Paul BS Lai Department of Surgery, PWH

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1 2012 Hospital Authority Convention ABC of Mediation Paul BS Lai Department of Surgery, PWH

2 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)

3 Adopted from YouTube - 調 解 精 讀 班 by Edwin Choi ( 星 期 日 檔 案 )

4 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

5 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

6 Medical negligence claims in the Court 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

7 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

8 Mediation Litigation Who makes decisions? The parties The judge Who controls the process? Role of third parties Involvement of the parties Focus The mediator Independent, impartial facilitator Full participation in deciding on issues, creating, evaluating and agreeing options On needs of parties, not on fault finding The judge To act as advocates and discredit the opposition Lawyers as representative to participate on parties behalf 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

9 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.

10 Report of the Working Group on Mediation DOJ Feb 2010 Recommendation 9 1) Workplace and employment 2) Intellectual property 3) Banking and financial services 4) Medical malpractice and healthcare 5) Child protection 6) Environmental, urban planning, land use and redevelopment

11 Process of mediation 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

12 Skill set for a mediator 1. Communication skills 2. Facilitation skills 3. Reframing skills 4. Empowerment techniques 5. Negotiation skills 6. Mediation strategy 7. Handling of deadlocks 8. Some understanding of law and legal proceedings

13 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

14 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.

15 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

16 The power of words 01:48 video from

17 Active Listening Lots of eye contact Treat speaking party as king Very focused

18 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

19 Toolbox for mediator for medical negligence cases Positive attitude and positive thinking Planning before mediation process Get your skill set ready During the mediation process: gain mutual understanding active listening with empathy acknowledge emotion with empathy help create realistic win-win solutions

20 Hurdles we have for mediations for HA

21 (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

22 (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

23 (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

24 (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

25 Why healthcare professionals in the HA need to learn mediation?

26 Complaints and Communication Complaints substantiated after peer review Misapplication of clinical skills Failure to investigate or treat Attitude and behaviour Breakdown in communication 77.9% 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

27 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

28 See through it.the needs behind Hi, Maslow s triangle still holds

29 Mediation training activities at HA

30 the only ones among you who will be truly happy will be those who have sought and found how to serve. ~ Dr. Albert Schweitzer ( )

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