Week 20

Digging into mediation

Zach Moss
4 min readOct 27, 2023

My last weeknote mentioned how we wanted to explore if mediation could play a role in our services. Specifically, is mediation something we could signpost or offer to people who found themselves in a dispute with medical professionals?

During some desk research I stumbled across a very helpful piece of research about the use of mediation to resolve medical treatment disputes. The researcher Dr Jaime Lindsey has kindly offered up some time to chat to us about the project and also sent through some reading — so we’re well on our way.

As a sidebar I do love the desk research part of discovery, rabbit hole after rabbit hole…

Early thoughts on how mediation may be relevant for our service

Mediation is a form of alternative dispute resolution. It’s considered to be more informal and flexible than going to court. Without having started our user interviews yet, I suspect ‘mediation’ is one of those words people will mostly have heard of and have some sort of inherent understanding. The practicalities and application of it though I think are where it gets a bit confusing.

Helpfully, Dr Lindsey’s research defines the context of mediation in relation to medical disputes:

When discussing ‘medical treatment disputes’ this means 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.

Mediation of Medical Treatment Disputes: A Therapeutic Justice Model

After reading through an evaluation report of mediation in the Court of Protection, I had a few thoughts:

  • There is comparable use of mediation in other areas of law, think divorce. For example, the Court of Appeal has a mediation scheme which is administered by The Centre for Effective Dispute Resolution (CEDR).
  • There’s been some work done already on how an ‘official’ Court of Protection mediation scheme may operate in practice. With guides, documents and resources created. We need to see these.
  • We initially thought that mediation would neatly slot in as an in-between step between us and our in-depth support service and the Court of Protection. It seems though that mediation in this step is actually more of a pre-hearing step to prevent going to a full judicial hearing. If true — it may be the case it’s a useful option but to a smaller group of people rather than the majority of people who contact us who are still very early in their ‘dispute’ with healthcare professionals.
  • It’s not our job to come up with a mediation scheme — so what is our role? Is it as simple as just having a list of mediators ready to signpost to?

More research into medical disputes

It’s clear from this early bit of research into mediation we need to get much more into the detail of mediating medical treatment disputes.

Unfortunately the report into the practitioner-led Court of Protection mediation scheme highlighted that there weren’t any serious treatment cases in the evaluation.

We need to work out what is unique to medical treatment disputes and how well mediation can help in these specific circumstances. We need to do this, as we need to better understand when we might need to offer mediation as an option to someone.

We’ll always be on the side of the family or person in these cases, but it does strike me that it takes two to tango in any mediation. So I’m very conscious we need to start thinking carefully about how we build in the healthcare professional viewpoint into this research.

In fact, we are having some thoughts about how we can recruit any healthcare professionals to speak to as part of this research — any ideas please let me know!

Desk research is fun

It’s hugely helpful to come across such a huge body of research and previous thinking about medical treatment disputes. Often during our work it’s very easy to become despondent and despair at how easily relationships can break down between healthcare professionals and family members. Especially when both parties appear to be working towards the same thing.

As always with desk research, we’ll need to decide what’s most relevant and think about how we can practically turn the best available research and use this to create clear content for our service users who need help.

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Zach Moss

I work @agooddeath. Trying to ensure a better end of life experience for people who want to think about death and dying (and those who don’t).