Healthcare providers, already wary of entanglement in legal proceedings, may shy away from mediation as an option. The following article by Ms. Franklin was first published in the September 2004 issue of the Medical Bulletin of Northern Virginia. She believes it might make interesting reading for healthcare providers.

Settling Differences

It may benefit physicians and other health care providers to know that there are effective alternatives to settling serious disputes in court. Even lawyers and judges admit that litigation is costly, time and energy consuming, and sometimes a painful way to settle matters. Some parties to litigation feel that by walking into a judicial forum, they surrender control.

A powerful alternative to litigation is the process known as mediation. I urge you to consider it. When you are entering into an important contractual relationship, seek to include a provision whereby the parties agree to make a good faith effort to resolve by mediation any later disputes under the contract, before seeking judicial remedies. That lays the groundwork for later use of the process should a dispute arise. Second, even when no such contractual provision exists, if you find yourself in the midst of litigation and negotiations are failing, mediation still may provide relief.

Lawyers are now ethically required in Virginia to advise clients of the availability of alternative dispute resolution in the event of possible litigation. Mediation is one form of alternative dispute resolution.

What is mediation? Mediation is practiced somewhat differently by different mediators (everyone has his/her own style), and the "science" of it is evolving as more is learned about what helps and what doesn't help people and groups reach accord. But the salient characteristics of mediation are these: it is an informal process wherein no rules of evidence and complicated procedures apply to leave the parties feeling a loss of control and consternation at why proceedings happen as they do; it is also voluntary (the parties who agree to try to mediate can discontinue their mediation efforts without penalty when they become dissatisfied with the process); it is confidential (with very few legally required exceptions, nothing that is said or written in the course of mediation can be disclosed in later court proceedings and the mediator cannot be compelled to produce documents or testify about the content of the mediation); the parties control and choose the outcome .

Unlike a court proceeding there is no decision maker. The mediator's job is to facilitate the process so that the parties can figure out a way to resolve the issues between them. Again, the parties control the outcome. The mediator is a neutral who does not and cannot give legal advice to the parties. Parties to a mediation can have legal representatives in the proceeding or can break to seek legal advice. They have the right to have a lawyer review any mediated agreement before the agreement is signed. But once mediation produces a signed agreement, that resolution is an enforceable contract between the parties.

It is a remarkably creative process that invites tired, frustrated, unhappy parties to develop options for a resolution that really suit the needs of the parties. No one is locked into legally dictated answers or remedies.

Mediation can be used in simple disputes as well as in complex multi-party civil disputes as well. Watching it in action is nothing short of fascinating. I have seen people who are absolutely fed up with each other work through to an agreement and once they have done so start to talk to each other in ways that suggest that doors to the future might still be open.

Government agencies are using mediation in intra-agency disputes. Corporations find it an important tool; businesses need to keep moving forward and not be tied up in expensive disputes, with all the negativity that is so counter productive. Private mediation of commercial and employment disputes is growing because of the recognition of its power. Domestic relations disputes is an area of the law where alternative dispute resolution is being urged. Some community groups even offer mediation services to lessen neighborhood disputes.

Courts can refer pending cases to mediation. Private persons and groups can agree to hire a mediator for private mediation. Lawyers and retired judges as well as others can be trained to serve as mediators.

Mediation is not the process of choice in every situation and sometimes it doesn't produce an agreement. For example some cases involve a dispute of key facts in which case objective fact-finding and decision making is necessary. Nor does every personality fit into the mediation mold. When a party or parties have unrealistic expectations or views of things, they might be better served by considering a different process called neutral case evaluation in which a third party neutral gives an assessment of the case which can help the parties reconsider whether to settle the matter outside of court.

But those things said, mediation is startling successful. In addition, success can be measured in ways other than a signed agreement. The parties may take a break from mediation without an agreement; but participation in the process has begun in them a reconsideration of the matters that leads to something positive. Agreement can ensue at a later time.

This is a very simplistic exposition of mediation and does not scratch the surface of all that can be written about it. Mediation is rich in interest and possibilities. The main point of this brief article is to provide an introduction to the subject that you can tuck away for consideration in the event you find yourself in a difficult dispute that you'd like to resolve. 

Jeanne F. Franklin is an attorney who practices in Old Town Alexandria in the health  and employment fields and is a certified mediator.