Why Mediation is Always the Best Approach
In any professional indemnity context, there is bound to be occasions where there is a dispute on the extent of liability and even as to the true cause of the perceived malpractice. The most typical reaction – sensationalized by TV shows – would be to seek a legal outcome in court that compels the other party to accept the position of one party. However, in reality this is often a costly and time-consuming pursuit that essentially helps no one, since a lot of effort is spent negotiating through this process.
Mediation as the First Port of Call
While there might be many instances where legal recourse is eventually unavoidable, it is important to understand that mediation will always be helpful – even if the discussion breaks down and the legal recourse is eventually taken. This is because the process of preparing for mediation involves the same fact-preparation that would be undertaken for legal representation and is therefore not truly a ‘separate’ process.
Once the facts are prepared and presented during a mediation session, the parties are guided through the process of trying to find a suitable compromise that serves the best interests of all. Since this process approaches the issue from the perspective of finding compromise, it would be focused on the main elements of the dispute and centralise the concerns in an amicable manner.
When Mediation Works
In most cases, the claim on malpractice is driven more by raw emotions of being wronged than anything else. Mediation offers a safe and methodological avenue through which these emotions can be cut through and the root matter established in a clear manner. While a court proceeding does this as well, mediation recognizes the reality and impact of emotions to a far greater extent than the courts.
Once the emotional overtone is acknowledged and addressed, it then becomes easy for the parties to focus on the actual circumstances and their causes to work towards meaningful outcomes. At the end of the day, the result of any claim is unlikely to restore the emotional well-being completely and is just a platform for psychological healing to be initiated. Mediation offers just the right combination of empathy and factual positioning to serve the most appropriate outcomes for all parties.
In many instances, the mediation better serves the closure for the aggrieved party since the emotional impact is part of the process. Eventually, the outcome may be more intangible in nature – such as a heartfelt apology – which would be more powerful in repairing the psychological damage caused than a monetary outcome through the courts.
When Mediation Breaks Down
Even when the mediation is not successful in achieving a mutually-acceptable outcome, it is likely to set the tone for the legal recourse. With so much emphasis on working on the main elements and moving towards a suitable outcome for all sides, it will be easier to move it to the courts for a decision using the same context that was presented in mediation. If that approach is taken by both parties, the court process then becomes less arduous and having a higher chance of arriving at an appropriate decision quickly.
While this is not a guaranteed process flow and there will always be cases where the deliberation breaks down significantly – thus turning the court process an acrimonious one, mediation as the first step provides for the possibility that good outcomes can be achieved for both parties
This is the reason for most claim handlers to prefer mediation as the main method to resolve claims, which contrasts against the erroneous belief that mediation is used for escaping real repercussion. More general awareness is needed to create a more positive perception of mediation where malpractice claims are involved but the truth remains that it is for the benefit of all parties.
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