Arbitration in medicolegal disputesBMJ 1994; 308 doi: https://doi.org/10.1136/bmj.308.6931.792 (Published 19 March 1994) Cite this as: BMJ 1994;308:792
EDITOR, - Malcolm Forsythe's editorial on arbitration and the internal market is a useful contribution to the growing debate on the resolution of disputes in medicine.1 Though arbitration undoubtedly offers a viable alternative to litigation in medicolegal disputes, however, it is not the only alternative but is part of a range of techniques encompassed by the term “alternative dispute resolution.” The other main technique is mediation, which differs from arbitration in several important respects: the proceedings are without prejudice and confidential, and any resolution is arrived at by the disputants themselves and not imposed by the neutral mediator. If agreement is reached it is not legally binding on the parties, but this is not necessarily a weakness of the process. The advantages of mediation in medicolegal disputes are speed, low cost, a reduction of stress on both parties, and the likelihood of resolution satisfactory to both sides.
The use of alternative dispute resolution in commercial disputes is now well established in Britain, largely owing to the efforts of the Centre for Dispute Resolution. This centre was set up in 1990 with the support of the Confederation of British Industry. The first one day conference on alternative dispute resolution in medicine was held at the Royal Society of Medicine last December under the joint auspices of the Institute of Arbitrators and the BMA and was entitled “Disputes between patient and doctor. Is arbitration a solution?” In his keynote address the master of the rolls, Sir Thomas Bingham, suggested that “there must be a role for the skilled mediator at this early stage.” The conference supported this view and explored the use of mediation and arbitration in resolving disputes between doctors and patients and, incidentally, partnership disputes between doctors.
With the review of complaints procedures in the NHS due for publication soon and the universal dissatisfaction with the primacy of litigation in medical disputes, the time is now ripe for the medical and legal professions to put aside vested interests and to combine to produce a workable alternative to litigation.
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