Mediation — a helpful approach to complaints resolution
The Health and Disability Commissioner has the ability to refer some complaints to mediation before or during an investigation. Although a formal mediation between the parties can achieve real resolution for all those involved, nearly one-third of the people who are offered mediation decline this option.
What is mediation?
The mediation process involves the person(s) making the complaint meeting with the people or organisation against whom the complaint is made in order to discuss what went wrong and to agree on a resolution. A mediation meeting is facilitated by a trained mediator who ensures there is a safe environment in which all parties can discuss their feelings and experiences without fear of retribution or retaliation. Mediation allows both parties to gather information about how mistakes have been made and how the underlying causes or problems can be fixed. It also allows each party to share the feelings of the other about what happened.
Mediation is more likely to result in a positive outcome when problem solving happens early, in a manner that suits everyone’s needs, and before people involved become battle-weary and hardened in their attitudes. Mediation facilitates creative solutions, aims for a win win resolution for both patients and clinicians, and supports safer health care.
What happens at a mediation?
People involved in the complaint meet, with a support person if they wish, at an agreed time and place. The mediator (an experienced lawyer accredited as a mediator) is impartial and facilitates a discussion about the complaint, allowing both parties uninterrupted time to present their side of the story in their own words. Once the issues have been identified, the parties will consider options for resolution. If necessary, the mediator may suggest that the parties separate into different rooms so that they can consider their options in private. The mediator will then discuss matters privately with each of the parties and, if necessary, act as a messenger between the parties. When a resolution is reached, the mediator will draw up an agreement to be signed by each of the parties before leaving the mediation. However, the mediator has no power to force a decision on the parties or to make them agree to anything.
Any issues discussed during mediation, or any document prepared specifically for mediation, is confidential to this process. None of the parties can use material from the mediation in any future proceedings before a Court or Tribunal.
If a complaint is not resolved by mediation, the Commissioner will decide what, if any, further action to take (for example, discontinuing the investigation).
Why may mediation be helpful?
Although the idea of meeting face-to-face with the people involved in the event or circumstances leading to the complaint may seem daunting, many people prefer to resolve complaints through mediation because they are more likely to understand the process and maintain a sense of control over it. Neither the parties nor the mediator are limited by what is legally “right” or by any rules of evidence. If a resolution is reached, it is one that the parties have created themselves, not one imposed by the Commissioner or the Court. Resolution achieved through mediation can be very satisfying and positive for both parties.
Often, when something goes wrong, patients and their families are concerned with issues other than money. A recent review of HDC complaints showed that 50% of complainants wanted lessons to be learned; 40% wanted some form of communication such as an explanation, an apology, or an expression of responsibility; 22% wanted some sort of compensation; and only 12% were looking for professional discipline or other punitive measures.
Using mediation, those involved in providing health care or a disability service have the opportunity to take responsibility, offer an apology and put measures in place to avoid the same thing happening again. Complainants are better able to understand what went wrong and to be assured that corrective action will be taken.
Summary
Mediation is about working with the common interests of both parties to hear different perspectives on what went wrong, identify what needs to be remedied, learn how to avoid repeating mistakes and, in so doing, achieve meaningful outcomes.