1 MEDIATION IN RESOLVING DISPUTES IN MEDICAL NEGLIGENCE CASES By LEE SWEE SENG LLB, LLM, MBA...

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MEDIATION IN RESOLVING DISPUTES IN MEDICAL NEGLIGENCE CASES

By LEE SWEE SENG

LLB, LLM, MBA

Advocate & SolicitorNotary Public, Trademark, Patent Agent

Certified Mediator

[email protected]

©copyright

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A wise teacher once said: “Blessed

are the Peacemakers” – Matthew’s

Gospel

‘A dispute is a problem to be solved,

together, rather than a combat to be

won.’ – Woodrow

Wilson

Quotable quotes

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In a battle, be it legal or otherwise, there will be casualties and everyone is a loser.

In a mediation, one seeks a win-win situation where a relationship is still maintained in good faith.

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Anatomy of a conflict■ Conflict between patient & doctor

■ Commonly caused by:

■ medical malpractice

■ (eg performing surgery on the wrong site or an error caused by illegible prescription)

■ wrong diagnosis/recurring pain

■ performing operation on patient without proper consent

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Anatomy of a conflict Conflict between patient & the

healthcare providerCommonly caused by: Bad service Disrespectful treatment by staff Faulty equipment or facilities High fees

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Anatomy of a Conflict

Difference

Disagreement

Dispute

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MMA ON MEDIATION Dr Ravindran Jegasothy, Chairman,

Ethics Committee, MMA, in is letter to NST dated 28th February 2006.

“….long delays, inability to get expert opinions are some of the technical issues in such cases to frustrate both the litigants and doctors who want to clear their name speedily.

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MMA ON MEDIATION The MMA during its AGM in 2003,

passed a resolution to use alternate dispute resolution mechanisms (ADR) to speedily resolve medical negligence cases.

MMA would like to see an honest and open policy by health care institutions when faced with allegations of negligence.

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MMA ON MEDIATION MMA wants a mechanism whereby

hospitals, including public ones, should be allowed to a pay a reasonable compensation in some cases without admission of liability.

Best interests on patients if allowed.

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The Definition

Mediation: a structured negotiation process in which a neutral impartial third party, the mediator, independent of and acceptable to the parties, facilitates their agreement on a resolution of their dispute by assisting them systematically to isolate the issues in dispute, to develop options, and to reach a mutually acceptable resolution which accommodates the interests of all disputants as much as possible.

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The Definition (cont)

If requested, the mediator may suggest options for settlement but does not have authority to impose a settlement or its terms on the parties.

Jay Folberg and Alison Taylor Mediation: A Comprehensive Guide to resolving Conflict without Litigation (Jossey-Bass, San Francisco, 1984); Christopher W Moore 77 The Mediation Process: Practical Strategies for Resolving Conflict (Jossey-Bass, San Francisco, 1986); New South Wales Law Society’s “Guidelines for Solicitors who Act as Mediators” (1 988) 26 Law Society Journal (6) 29.

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Mediation defined by Legal Aid Act

1971 the undertaking of any activity for the

purpose of promoting the discussion and settlement of disputes;

the bringing together of the parties to any dispute for the purpose referred to in paragraph (a), either at the request of one of the parties to the dispute or on the initiative of the Director General of Legal Aid; and

(c) the follow-up of any matter being the subject of any such discussion or settlement

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Mediation:Legal Aid Act IN exercise of the powers conferred by

subsection 29F(1) of the Legal Aid Act 1971[Act 26] Dato' Seri Mohamed Nazri bin Abdul Aziz, Minister in the Prime Minister's Department, have appointed Puan Norizan binti Che Meh as Director of Mediation of Legal Aid to assist the Director General of Legal Aid commencing on 16 April 2005.

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Various Mediation Bodies

Financial Mediation Bureau Insurance Mediation Bureau Malaysian Mediation Centre Marriage Tribunal / Conciliatory

body (Law Reform (Marriage & Divorce) Act 1976

Architects’ Mediation

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Professional bodies referring to mediation

Architects (Amendment) Rules 2005 Rule 29 (3rd schld) Pt.1 r23; Any dispute between the Professional

Architect and the client, the parties may refer their dispute to the mediators

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Professional bodies referring to mediation

The Financial Mediation Bureau (FMB) helps to settle disputes between the party an the financial institutions, payment system operators, etc such as personal loans, hire purchase, insurance and banking related matters.

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Legal and Business Implication of Conflicts

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Bad Press Publicity

When a conflict occurs between a patient and doctors there is a high probability that a patient will react by going to the press to get public support

Bad Publicity is perhaps much worse for hospitals than doctors, although it has potential to cripple both

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Bad Press Publicity

The Star, Saturday, February 3, 2007

Woman sues hospital over hubby’s brain damage

KUALA LUMPUR: A senior systems analyst checked himself into the Pusat Rawatan Islam (Pusrawi) Hospital here in September for what his doctor described as a simple operation to correct his slipped disc but was wheeled out with severe brain damage.

Roslan Mohd Ali, 43, is now in a vegetative state due to lack of oxygen supply to his brain.

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Bad reputation

Coral Springs mother died from massive overdose given by Broward General nurseSouth Florida Sun-Sentinel Posted January 24 2007

The Coral Springs mother went to the emergency room feeling sick after running out of medicine. But Rohart, an ER specialist for eight years and a doctor since 1989, said he ran tests and prescribed 800 milligrams of the anti-seizure drug Dilantin. "She and I were laughing when I left for the day," Rohart said.But the nurse instead administered 8000 mg (eight grams), quickly stopping the patient’s heart, hospital officials said. The fatal dosage is two to five grams.

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Bad reputationInstead of just getting a refill, she died when a nurse

gave her a massive overdose of a seizure drug, according to hospital officials and state records

The state Department of Health filed action in October to revoke the nurses’ license or discipline her for "gross negligence." The case is pending. District officials agreed on Aug. 11 to pay the victim’s husband, Randall Woodin, $200,000 to avoid a lawsuit. Rohart, the doctor, was fired on the spot Sept. 15, after his bosses learned he called the husband. He said Woodin told him the settlement deal included firing Rohart and Cooper

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Various Grievance Mechanism

Traditional & Alternate Dispute Resolution

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Traditional Through more primitive methods

such as physical violence or hurl verbal abuses

By seeking monetary compensation

By going to the press

Litigation

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Mediation vs Litigation In mediation, the parties are in

control of the outcome by entering an agreement only if both of them are satisfied with the final result

In litigation, the dispute is resolved by processing a claim in a Court of law through formal and legal stages from pre-trial to a final judgment decided by a judge

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Hidden costs in litigation In addition to legal fees:- a) getting to decision costs b) distraction costs c) self-education costs d) emotional wear and tear costs e) lost of opportunity costs

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Problems of Litigation Costly (involves legal fees, court

fees, interest etc.)

time consuming (may take years)

outcome may not be favorable to both parties

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FOO FIO NA V. HOSPITAL ASSUNTA & ANOR [2007] 1 CLJ 229

At time of accident the plaintiff was 24 years. Accident occur on 11 July 1982.

Summons Filed on 29 July 1987 The Trial was set on February 1995 Federal Court Judgment on

December 2006 (25 years of waiting)

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The Federal Court distinguished the Bolam’s Test and declined to follow it.

They adopted the principle in Rogers v Whitaker [1992] 175 CLR 479 (Australian case) as it was endorsed in Malaysia in the case of Kamalam Raman v Eastern Plantation Agency Sdn Bhd [1997] 5 CLJ 250.

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The standard of care observed in Australia is……. that a person with some skill or competence is that of the ordinary skilled person exercising and professing to have that special skill…….

Thus the Apex Court came to a conclusion that it is about time members of the medical profession to stand up to the wrong doings.

The saying ‘Doctors knows best’ is now followed by ‘if he acts reasonable and logically and gets his facts right’.

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FOO FIO NA V. HOSPITAL ASSUNTA & ANOR

Judgment (as upheld by the Federal Court): General Damages: RM180,000 Special Damages: RM315,462.97 Total: RM495,462.97 plus 8% per annum for general

damages since date of service of the writ date of judgment. (24 years)

Reaching almost RM1.5 million

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Alternative Dispute Resolution (ADR)

Negotiation (voluntary & does not involve a third party)

Mediation (voluntary & involves a third party which does not impose a resolution)

Arbitration (voluntary & involves a third party private judge who imposes a resolution)

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The difference between ADR and Litigation

ADR is a less confrontational, adversarial, and costly mechanism

Negotiation is the two parties attempting to solve the problem on their own

Arbitration is essentially a less formal court

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The difference between Arbitration and Mediation

Mediation

Low costLittle delay

Maximum range-solution

Parties control outcome

Uncertain closureMaintain

relationship

Arbitration

Moderate costModerate delayWin/Lose/Split

Arbitrators control outcome

Definite closureMay harm relationship

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Mediator’s role Advise, listen and reach a win-win

solution Explain process and rules of

mediation Setting tone of negotiation Defining issues Exploring options Final agreement drawn by Ranjan Chandran, Mediation-Charting the right course for the new millennium [1993] 3 CLJ xiii

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Medical mediation Southwest and Texas Methodist Hospital Some large hospitals provide mediation to

ensure communication and problems are resolved rather then be swept under the rug.

Surprisingly, Plaintiffs (patients) only requests for an apology rather than slapping them with claims for damages.

An apology, technically not an admission of guilt, but realizing the mistake they made which often closes a mediation conference.

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Medical mediation Instead of dragging a suit into Court and

affecting the doctors emotional and professional capacity, they benefit from settling their claims though mediation

Mediation in hospitals will provide speedy solutions, calming down parties and in solving real issues one at a time.

by Ranjan Chandran, Mediation-Charting the right course for the new millennium [1993] 3 CLJ xiii

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What are the benefits of Mediation?

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Advantages of Mediation Time saving and rapid settlements Cost efficient Flexible Working towards a win-win

situation Informal Confidential/privacy

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As involvement in mediation is a way to

avoid court, it means that the fees and

charges that come along with litigation are

avoided A voluntary mediation program used by the

Rush Presbyterian-St. Luke’s Medical Center

in Chicago since 1995 had successfully

expedited resolution and lowered legal

costs associated with medical malpractice

cases, according to OHCR Deputy Director

Susan Anderson.

(http://www.ctsnet.org/doc/4380)

Lower cost

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Cases in court can take years until an opportunity to settle is given to the parties which may or may not benefit both the parties at all

Mediation avoids all trials. Thus, saves time.

A settlement between the parties can be made quickly and efficiently as the parties knows what they want and a agreement can be made to benefit both the parties as much as possible.

Quicker Resolution

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Other benefits

• The problem is put forth in a non-legal language for the benefit of the parties.

• Parties who reached their own agreement through mediation are more likely to follow through and comply with the agreement’s terms than those whose resolution has been imposed by a third party decision-maker. (ie: a judge)

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Parties are able to attend to the fine details of settlement. Thus mediated agreements can include special procedures or terms for how the decisions will be carried out and parties will be able to fully carry out the terms of the settlement.

The agreement is thoroughly understood by all parties involved because the terms are discussed between the parties

Other benefits

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Other benefits

High Settlement rate More than 1000 matters have been referred to

the Singapore Mediation Centre for mediation. The settlement rate is in the region of 80%. Of

the settled cases, more than 90% were settled within one working day.

Of the disputants who participated in, and provided feedback on, the mediations conducted at the Singapore Mediation Centre, 84% reported costs savings, 88% reported time savings and 94% would recommend the process to other persons in the same conflict situation.

(Source:Singapore Mediation Centre)

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When not to mediate

When mediation involve a high risk

of personal danger

When the issues affect the entire

society

When parties wish to establish a

binding judicial precedent

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Mediation Agreement There are two types of mediation

agreements A contractual agreement to attend

mediation in the event of a dispute (pre-service agreement)

A contractual agreement that results from a successful mediation (post-mediation agreement)

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Pre-service agreement

For the reason of the

abovementioned benefits, mediation

may be inserted into a contract so

that in the event of a dispute the

parties must first attend mediation as

a way of discussing and resolving the

dispute without going through

traditional litigation

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Draft Clauses (from Singapore Mediation Centre)

Draft Clause 1: "All disputes, controversies, or differences

arising out of or in connection with this agreement shall first be submitted to the Singapore Mediation Centre for resolution by mediation in accordance with the Mediation Procedure for the time being in force. The parties agree to participate in the mediation in good faith and undertake to abide by the terms of any settlement reached."

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•Draft Clause 2:

"All disputes, controversies, or differences arising out of or in connection with this agreement shall first be submitted to the Singapore Mediation Centre for resolution. The disputes, controversies or differences shall be referred within [No. of days] days from the time they arose, in accordance with the Mediation Procedure for the time being in force, unless any of the parties serve a written notice on all the other parties and the Singapore Mediation Centre stating that it does not agree to submit the matter to mediation. The parties agree to participate in mediation in good faith and undertake to abide by the terms of any settlement reached."

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Post-mediation agreement

•States the settlement terms agreed by both parties and is binding when signed by or on behalf of the parties

•Assuming that both parties reach an agreement in mediation a solution will be drafted. This agreement does not have to be contractual

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Responsibilities of a Mediator:Legal Aid (Mediation) Regulation 2005

be bound by the terms in the Mediator's Code of Ethics as prescribed in the Fourth Schedule;

facilitate negotiations between the Parties and steer the direction of the mediation session with the aim of finding a mutually acceptable solution to the dispute; and

assist the Parties in the drawing up of any written settlement or agreement.

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Qualities of a good Mediator

A good listener

A good communicator

Able to identify the fundamental issues

Able to focus on the matter in hand and

push aside roadblock created by emotions

and assumptions

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Qualities of a good Mediator

Someone who commands the respect of the parties

Creative in envisioning solution

Experienced in many areas of law

Patient and determined

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ITS PROCEDURE / PROCESS

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Malaysian Mediation Centre (MMC)

The MMC is a body established under the auspices of the Bar Council with the objective of :-

promoting mediation as a means of alternative dispute resolution and

provide a proper avenue for successful dispute resolutions.

Source: MMC

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Malaysian Mediation Centre – The Process

i. Pre-Mediation Process – where parties sign a mediation agreement indicating their submission to mediation;

ii. Preliminaries – an introduction to mediation

iii. Mediator’s Opening – ground rules are laid down by the mediator for the session; Mediators are provided with a brief statement of facts. No prior in-depth knowledge of the issues at dispute are required;

iv. Joint session – parties are invited to state their respective cases in each other’s presence;

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Malaysian Mediation Centre – The Statistics

Cases referred for mediation as at 30.1.2007

2000 2001 2002 2003 2004 2005 2006 2007

2 26 7 8 27 34 27 1

Successful to date: 32 casesPending: 62 casesUnsuccessful to date: 15 cases

Source : MMC

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Malaysian Mediation Centre – No of Mediators

No. of Mediators (as at 9.2.2007)Total : 149KL – 64Selangor – 21Negeri Sembilan – 4Johor – 13Penang – 28Perak – 14Kelantan – 1Melaka – 1 Kedah – 3

Source : MMC

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Malaysian Mediation Centre – The Process

i. Caucuses – optional and usually exercised to enable the parties to vent emotions and to speak freely. Allows mediator to pick out common issues and hidden messages;

ii. Settlement Agreement – parties sign a settlement agreement witnessed by the mediator. Parties are at liberty to pursue court action should outcome be unsatisfactory. Either parties’ solicitors may draw up agreement or mediator may do so if assistance is required.

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The Practice

Modeled after the mediation training guide produced by LEADR

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Model of Mediation in Pre-mediation: The Preliminary Conference

The Past-Understanding and Exploration

Opening Parties Opening Statement Exploration of Issues Private Sessions

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Model of Mediation in Pre-mediation: The Preliminary Conference

The Future-Problem Solving & Resolution

Private Sessions Joint Negotiations Session(s) Private Sessions Agreement/Closure

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Preliminary conference At preliminary conference

Introductions – both of Mediator and the parties

Roles: Mediator Parties Advisers

Process of mediation Discuss joint & Private sessions No interruptions Complainant speaks first, then

Respondent

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Preliminary conference

At preliminary conference Agreement to mediate :

Authority to settle Confidentiality as far as the law allows Privileged information Enforceability of Settlement Agreement Termination of Mediation Process

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Preliminary conference

At preliminary conference Outline of disputes Time,date, venue for mediation Parties Attending Summary – confirmed in writing

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MEDIATION : The first joint session – the 5 essential steps

The mediator’s opening statement The parties’ statements Summarizing Identification of issues (setting the

agenda) Exploration of issues

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Mediator’s Opening Statement : OBJECTIVES Engender confidence in the

process and in the Mediator Explain role of Mediator Ensure parties understand process

and know what is to be expected Set guidelines for conduct of

mediation

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Mediator’s opening statement:

Brief and concise Serves to put people at ease Allow parties to ask questions

during and at the conclusion of opening statement

Balanced approach to parties Simple language

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Mediator’s opening statement : CONTENT

Welcome and introduction – how are people to be addressed?

Role of the mediator – no advice on solutions Agreement to mediate Brief explanation of the process – joint and

private sessions Time constraints? Authority to settle Confidentiality Guidelines Goal of mediation – mutually satisfactory

solution Commitment to begin

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Stages in Mediation 2 stages: a) Problem defining stage

i) parties present their case. ii) discussion and active

participation by parties. iii) Mediator summarizing issues identified by each

parties by Ranjan Chandran, Mediation-Charting the right course for the new millennium

[1993] 3 CLJ xiii

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Stages in Mediation

b) Problem solving stage i) exploring options for settlement. ii) facilitate negotiations between

parties by holding both joint and further private sessions

between parties. iii) persuade parties to enter into an agreement which is binding upon them

by Ranjan Chandran, Mediation-Charting the right course for the new millennium [1993] 3 CLJ xiii

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The first joint sessions: Parties’ statements Which party should speak first? Encourage brief statement (“nutshell”,

idea of topics”) How to begin? – “Briefly, what has

brought you to the table today”? Listening (not questioning). No probing. Everyone at the table to be offered

opportunity to speak Generally, minimal note taking

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The first joint sessions : Summarizing – WHY? Mediator to

Check that what was heard was what was intended

Help them to hear each other Provide early acknowledgement of

concerns Show they have been heard

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The first joint sessions : HOW?

Mediator to Listen first – to ALL parties’

statements Attribute ownership of ideas to them –

eg, “you have told us that…”; “In your view…”

Use their language as far as practicable

Provide a summary – not a transcript

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Setting the agenda Listen first (don’t rely only on

information received prior to mediation) Neutral and mutual Mediator takes the lead Use bullets – don’t number Use whiteboard Don’t “over-consult” on framing Check list with parties

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The first joint session: Issue Exploration Allow parties to determine where

to begin Treat each issue separately (as far

as possible) Provide an opportunity for each

issue to be discussed Facilitate direct communication Clarifying questions, not probing Note any options which emerge

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The private sessions – WHY?

Break from intensity of joint session exploration

“Time out” for reflection Provide opportunity for discussion

of additional, confidential information/topics

Explore issues in more depth

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The private sessions – WHY?

Deal with strong emotions Explore and evaluate options for all

parties Reality test options Prepare for final negotiations

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The private sessions – WITH WHOM?

Speak with each party and their ‘team’ in turn

Can speak to lawyers separately Usually do not break lawyers and

clients

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The private sessions – HOW?

Remind parties of confidentiality – at end of joint session AND at beginning of each private session

Time management –tell them in joint session what is expected (max 30 minutes)

Who first? – Balanced treatment Ensure opportunity for equal time

Exploration before solutions

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The private sessions – HOW? (cont)

Anything which hasn’t yet been said

Don’t write on whiteboard Allow full expression of feelings

and emotion Explore new and existing agenda

topics Reality test positions and options

What would happen if unable to reach an agreement – BATNA, WATNA check

Summary

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Joint Negotiation Session(s) - purpose

Focus on resolution – the future To generate and evaluate range of

settlement options To reality-test and fine-tune the

final agreement To draft final agreement

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Joint Negotiation Session(s) - tips

Fatigue and pessimism can set in Should normalize the situation and

encourage parties to remain focused

Parties tempted to ask mediator to act as messenger

New options can emerge and should be evaluated

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Issues in Mediation

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Ethical Rules of Mediation:Legal Aid (Mediation) Regulations 2006

Impartiality Informed consent Confidentiality Conflict of interests Promptness Unrepresented Interests

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Mediation Rules Agreement of Parties Initiation of Mediation Request for Mediation Appointment of Mediator Disqualification of Mediator Mediation Agreement Representation

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Mediation Rules Date, Time and Place of Mediation Authority of Mediator Settlement Agreement Privacy Confidentiality No Stenographic Record, Audio-

Visual Recording of Formal Record

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Mediation Rules Stay of Proceedings Termination of Mediation Exclusion of Liability (Waiver) Interpretation and Application of

Rules Expenses Stamping of Agreement

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Mediator Code of Conduct Acceptance of Assignment Impartiality Confidentiality Settlement Withdrawal Fees Evaluation

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Mediation fees

Quantum of claim Fee per party

RM100,000 and below RM500 p/day

RM100,000-RM250,000 RM750 p/day

RM250,001-RM500,000 RM1,000 p/day

RM500,001-RM7500,00 RM1,250 p/day

RM750,001-RM1,000,000 RM1,500 p/day

RM1,000,001-RM2,000,000 RM2,000 p/day

RM2,000,001-RM3,000,000 RM2,500 p/day

RM3,000,001-RM5,000,000 RM3,000 p/day

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RM5,000,001-RM10,000,000 RM4,000 p/day

RM10,000,000 and above RM5,000 p/day

In addition to the above, the followingcharges are shared on an equal basis; Administrative charges of RM300 per case Room rental rates of RM350 for full day and

RM175 for half day(3 hours or less) Refreshments Secretarial services

(as quoted by the Malaysian Mediation Centre (MMC)

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Are Mediators immuned from liability?

s31B Legal Aid Act 1971 states that whatever said and done or omitted by a mediator, shall if done in good faith and did not involve any fraud or willful misconduct, subject them to any action or liability.

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Code of conduct by the MMC and Legal Aid (Mediation) Regulations 2006 & Legal Aid Act 1971

Impartiality Confidentiality (Reg 5(2) LA(M)R2006), s29E

Legal Aid Act - no person shall be compelled to disclose to

the court any confidential communication which has taken place between that person and a mediator, but if the mediation process fails, unless that person offers himself as a witness, that person may be compelled to disclose only such communications as may appear to the court to be necessary to be known in order to explain any evidence which he has given.

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Privacy

Mediation sessions are private but other

parties may attend with the consent of the

parties and of the Mediator.

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Confidentiality

i) All communications made are strictly ‘without prejudice’ basis.

ii) All reports and documents are deemed privilege.

iii) The Mediator shall not be compel to divulge such records or to testify as a witness, consultant, etc in any judicial proceeding.

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Confidentiality Code

US position : Uniform Mediation Act s 8 : Unless subject to the [insert statutory references to open meetings act and open records act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.

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Confidentiality CodeEuropean Union’s (EU) position : Whilst confidentiality is generally regarded as an essential feature of ADR proceedings, there will be circumstances in which it is not required, or cannot possibly be achieved. In each Member State, there are rules which govern the conduct of professionals involved in settlement negotiations. In some jurisdictions and situations, this will be a matter of public law.

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EU’s position : Article 10 provides for a general duty of confidentiality in the sense that “all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement”.

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EU’s position : Article 10 provides for a general duty of confidentiality in the sense that “all information relating to the conciliation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement”.

Source: EU Green Paper http://www.arbitrators.org/Institute/Downloads/E

U_Green_Paper.PDF

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Australia’s position : Position varies depending on the sort of ADR process and the applicable legislation. For example, the Federal Court of Australia Act 1976 (Cth), s 53B provides that evidence of anything said or any admission made at a mediation referred under the Act is not admissible in any court.

Source: http://www.austlii.edu.au/

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Australia’s position : Amendments to the Family Law Act 1975 in 1996 provide that evidence of anything said or any admissions made at a meeting conducted by a court mediator, a community or private mediator or a counsellor is not admissible in any court (s 19N). However, confidentiality is relaxed where there are reasonable grounds for suspecting that a child has been abused, or is at risked of being abused. (s 67ZA(1)(c) and (2)).


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Confidentiality CodeAustralia’s position : MEDIATION ACT 1997 - SECT 9 : Admissibility of evidence:

(a) a communication made in a mediation session; or

(b) a document, whether delivered or not, prepared—

(i) for the purposes of; (ii) in the course of; or (iii) pursuant to a decision taken or

undertaking given in; a mediation session; is not admissible in any proceedings except in accordance with section 131 of the Evidence Act 1995 of the Commonwealth. Source: http://www.austlii.edu.au/

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Confidentiality CodeAustralia’s position : Some exceptions under section 131 of the Evidence Act 1995 are:

(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.


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ProtectionAustralia’s position : MEDIATION ACT 1997 - SECT 11 Protection from defamation 11. The same privilege with respect to defamation as

exists in relation to judicial proceedings exists in relation to—

(a) a mediation session; or (b) a document or other material— (i) produced at a mediation session; or (ii) given to a registered mediator for the

purpose of arranging or conducting a mediation session.


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Protection

Australia’s position : MEDIATION ACT 1997 - SECT 12

Protection of mediators 12. A registered mediator has, in the

performance in good faith of his or her functions as mediator, the same protection and immunity as a judge of the Supreme Court.


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Conclusion

The concept of mediation is meant to be simple, ie settlement negotiation with the assistance of a neutral third party.

However, like the development of law, there are still more to be achieved vide the implementation of legislation and rules.

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THE ENDAssisted by:John Lee (Pre-U BioMed Student)Kenneshwaran Kandiah LLB(Hons)Sally KeeLLB (Hons) (London), of Lincoln’s Inn, BarristerAdvocates & SolicitorHigh Court of Malaya

1 MEDIATION IN RESOLVING DISPUTES IN MEDICAL NEGLIGENCE CASES By LEE SWEE SENG LLB, LLM, MBA...

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