Dr Jaime Lindsey, Associate Professor of Law, explains how mediation can be a therapeutic process for people involved in health and care disputes.
Is there a better way to resolve medical disagreements, one that might be more therapeutic for those involved than going to court? That was the question driving our research project, Mediation of medical treatment disputes: A therapeutic justice model, which looked at whether mediation might be a more therapeutic method of resolution for disagreements where patients, health professionals and family members disagree about the provision of health and care.
Mediation is a voluntary process that is meant to be flexible, confidential and led by the individuals involved. It involves an independent third-party, a mediator, working with people in a dispute to help them reach agreements about how to move forward.
The research took place in light of high-profile medical disputes that have received intense media attention in recent years, including the cases of Charlie Gard, Archie Battersbee, and Sudiksha Thirulamesh. We have written elsewhere about the background to many of these disputes and how mediation has been suggested as a way to resolve them outside of court.
Families of young children in particular have campaigned to make mediation mandatory and provide more support for parental decision-making. But there is a notable lack of evidence about mediation’s use, as evidenced by the relatively brief consideration given to mediation in a literature review and final project report produced by the Nuffield Council on Bioethics.
What we discovered
Our study is one of the first in England to collect empirical data specifically about what participants experienced in health and care dispute mediations and helps to show that mediation can be a therapeutic process for people.
Mediation creates space for dialogue where all voices can be heard, rather than the adversarial atmosphere of a courtroom. Participants told us that mediation gave them the space to express their views and feel heard. The collaborative nature of mediation also means that resolutions can be tailored to the specific needs of the person, rather than following rigid processes or rules. All of these factors can work together to improve the overall wellbeing of people using mediation.
However, we also found that some participants were resistant to mediation and resolution, cynical about the process and the mediators themselves, and felt some pressure to participate in mediation. These attitudes could be seen as anti-therapeutic, and it is important to minimise these negative effects by designing mediation processes that promote participant wellbeing.
Although mediation would not be suitable in all cases, or for some parties in disagreement, if it can be designed to support a more therapeutic process of resolution then it ought to be considered in appropriate cases.
As part of this research, and to help illustrate our findings, we scripted and directed a short film drawing on the experiences of people who had taken part in mediations. Our film depicts two fictional case studies, one concerning an unwell child whose doctors believe it would be best to withdraw life sustaining treatment, and one concerning an adult’s day-to-day care needs. The film provides a rare look at what happens in a mediation process and highlights the ways in which mediation can provide a pathway that prioritises the wellbeing of those involved.
The way ahead
Overall, our research demonstrates that mediation has potential as a more therapeutic approach to resolving health and care disputes. When designed thoughtfully – with emphasis on mediation being flexible, voluntary, participatory, less adversarial, collaborative, and enhancing communication and understanding – mediation can provide a path forward that prioritises the wellbeing of those involved. While it won’t be appropriate in every situation, we suggest that mediation deserves serious consideration for use in health and care disputes.
If you would like to know more about the research findings or mediation’s use in health and care disputes, please contact the study’s author at j.lindsey@reading.ac.uk or visit the project website.
Cover photo by National Cancer Institute on Unsplash.