Mediation of Medical Treatment Disputes: A Therapeutic Justice Model

The core aim of this research is to understand whether and, if so, the extent to which, mediation can and should be viewed as a form of Therapeutic Justice in medical treatment disputes. My research will develop a model of Therapeutic Justice which will then be tested and refined through the collection and analysis of original empirical data.

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. When discussing 'medical treatment disputes' I mean disagreements that arise between patients, health professionals, family members and others regarding the provision of health and care to the patient herself. Usually the patient will be an adult with impaired mental capacity or be a child below the age of 16, such that they are legally incapable of making their own decision about medical treatment, hence the involvement of healthcare professionals, family members and the courts. The disputes most commonly arise between family members of the patient and healthcare professionals, but in some cases may involve the patient herself. The research will consider whether there are any therapeutic, or healing, benefits of using non-court based methods of resolution, such as mediation, to resolve disputes that arise from healthcare 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 healthcare 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.

The PI and Project Consultants have all conducted research in relation to potentially vulnerable participants' experiences of the law and mediation. Further, we have researched the role of mediation in relation to the Court of Protection, judicial review and Special Educational Needs disputes. By carrying out this research now we expect to benefit potential users of mediation to resolve such disputes by identifying ways in which mediation can be used in therapeutic ways, while acknowledging the potential risks of mediation in this area. For example, we hypothesise that certain approaches to mediation (including, style and process), times at which to mediate and the participation of lay participants may all impact upon the extent to which therapeutic justice can be achieved. We will also consider whether there is anything specific to the healthcare environment that makes it particularly amenable to, or challenging for, the therapeutic benefits of mediation.