Mediation, which is a form of alternative dispute resolution, is generally more informal and flexible than court proceedings, but often takes place alongside or in parallel with court cases. Facilitative mediation, which is the type most commonly practised in this area, is meant to be a confidential process whereby a third party, independent person helps the parties to resolve part or all of the dispute themselves. The mediator facilitates the parties to reach agreement, rather than directing them in particular ways. This is because mainstream mediation theory suggests that it is beneficial for the parties themselves to guide the process, rather than an external third party.
There is an argument developing in the literature and legal practice that mediation might be a suitable way of resolving medical treatment disputes and even provide therapeutic benefits compared to litigation. This research will consider whether there are any therapeutic, or healing, benefits of using mediation to resolve disputes that arise from health and care contexts, as well as considering the ways in which mediation could become more therapeutic as an intervention. For example, through improved communication between parties, improved voice or participation in the process of dispute resolution and speed of resolution.
This project builds on existing research on mediation and Therapeutic Justice to consider mediation's value in often challenging health and care environments, while also considering that mediation comes with a number of risks which may make it is less than ideally therapeutic. For example, mediation can reflect or reinforce existing power imbalances between parties, it can limit the participation of the subject of proceedings and it may be seen as a cost saving, rather than therapeutic, exercise. As the use of mediation has not yet been tested through empirical research in the medical treatment disputes context, nor has a model of Therapeutic Justice been developed or applied to this field, this project seeks to test those claims empirically through qualitative analysis of mediation in medical treatment disputes.
Mediation of medical treatment disputes has not been researched using a socio-legal approach before, despite being an area where mediation is increasingly being argued for by legal professionals and the judiciary. Our project builds on literature on mediation with potentially vulnerable participants, within an area of law that has been relatively under-researched. Despite increasing emphasis on mediation in civil and family justice, there is limited evidence about its use in medical treatment cases. Yet in medical treatment disputes mediation may require a different approach that does not prioritise success rates and cost saving but the experiences of participants.