How to Get Past Impasse in Mediation

1. How to Get Past Impasse in Mediation Irish Commercial Mediation Association 5 April 2019

2. ICMA CONFERENCE 2019:How To Get Past Impasse in Mediation Delivered By Mary Lou O’Kennedy www.oakconflictdynamics.ie

4. A Working Definition of Transformation ‘A change in perspective and behaviours that leads to improved outcomes’ a complete change in the appearance or character of something or someone, especially so that that thing or person is improved The Cambridge English dictionary

5. A Working Definition of Breakthrough ‘A mutual recognition of our shared problem’ an important discovery or event that helps to improve a situation or provide an answer to a problem The Cambridge English Dictionary

6. Breakthrough Moments in Mediation

7. Building Self AwarenessApparent external behaviour THOUGHTS Internal Motivation EMOTIONS IDENTITY NEEDS VALUES

8. The CINERGY Model

9. CConflict Dynamics Profile Precipitating Event and Hot Buttons/Trigger Conflict Initiated Constructive Responses Behaviours which keep conflict to a minimum Destructive Responses Behaviours which escalate or prolong conflict • Task Focused Conflict • (Cognitive) • Focus on task and problem solving • Positive effect • Tension decreases • Group functioning improves • Person-Focused Conflict (Affective) • Focused on personal • Negative emotions (anger, frustration) • Tension increases • Group functioning decreases Conflict De-Escalates Conflict Escalates

10. CDP Individual Feedback

11. CDP Individual Feedback

12. CDP Individual Feedback

13. Mediation Map 30 The Way from Disagreement/Conflict to Agreement/Cooperation Preparing for action

14. Fatigue Inhibitory reflex Desire for peace Catharsis Forces Toward Harmony The human nature of Breakthrough Explains why Conflict Mountain has a peak 19

15. Out beyond ideas of wrongdoing and rightdoing, There is a field. I'll meet you there Rumi

16. Thankyou For Your Attention! Mary Lou O’Kennedy www.marylou@oakconflictdynamics.ie

17. How to Get Past Impasse in Mediation Irish Commercial Mediation Association 5 April 2019

18. Mediation - A Holistic Approach ToMedical Malpractice ClaimsPhilip Fagan, FCII, Dip LegalStud (Honorable Society of King’s Inns)Irish Commercial Mediation Association (ICMA)5th April 2019

19. Clinical Indemnity Scheme BACKGROUND

20. Statutory Basis for CIS • National Treasury Management Agency (Amendment) Act, 2000 • National Treasury Management Agency (Delegation of Functions) Order, 2003 Two functions: • Management of clinical claims from 1st July 2002 • Provision of Clinical Risk Management advisory services to Enterprises • National Treasury Management Agency (Delegation of Functions) Order, 2007

21. Clinical Indemnity Scheme • In 2002 the State took over responsibility for all clinical negligence claims and associated risks • Provision of State Indemnity to all Public Hospitals and their clinical staff • On the 1st February 2004 the hospital consultants came under the ambit of the scheme • CIS – Specialist division of State Claims Agency

22. CIS Structure

23. Clinical Indemnity Scheme Clinical Indemnity Scheme • Specialist clinical claims teams • Specialist CP Unit • 22 Clinical Claims Managers • Managing 3,000+clinical claims • Average 600/675 new claims every year • Clinical negligence cases complex & emotive

24. CIS established on basis of “Enterprise Liability” What constitutes an Enterprise? • Health Service Executive/Public Voluntary Hospitals • Other Agencies commissioned to provide clinical services to patients/service users • All healthcare staff

25. Mediation Mediation in clinical negligence cases • “ADRs are an integral part of the policies aimed at improving access to justice. In effect, they complement judicial procedures, insofar as the methods used in the context of ADRs are often better suited to the nature of the disputes involved. ADR can help the parties to enter into dialogue where this was not possible before, and to come to their own assessment of the value of going to court”. EU Commission - Green Paper on Alternative Dispute Resolution in Civil and Commercial Matters COM/2002/0196

26. Mediation Legislation • S.15 Civil Liability & Courts Act, 2004 • “…direct that the parties to the action meet to discuss and attempt to settle the action, and a meeting held pursuant to a direction under this subsection is in this Act referred to as a “mediation conference…” • Order 54A of the Rules of the Superior Courts: • “…invite the parties to use an ADR process to settle or determine the proceedings or issue, or (ii) where the parties consent, refer the proceedings or issue to such process…”

27. Mediation Act, 2017 Objective • “to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings”.

28. Mediation Act, 2017 • Key elements of the Act:- • Obligation on lawyers, prior to proceedings, to advise clients of Mediation as an ADR • Parties may ask the Mediator to propose solutions to the dispute (conciliation) • Use of non-lawyers as Mediators • More universal acceptance of mediation?

29. Mediation – A ‘Better’ Way Alternative Dispute Resolution to Litigation • Voluntary • Confidential • Flexible format/process • Less adversarial • Agreement focused • A neutral person assists parties to negotiate a resolution to the dispute

30. Mediation Benefits • Quicker - alternative to court Hearing • Proposed by CIS or claimant lawyer • Neutral Mediator – neutral venue • Collaborative instead of Adversarial • Allows for recognition of a claimant’s issue/s and a forum to discuss those issues

31. Mediation Benefits (cont..) • Efficient & cost effective • Usually resolved within one day • Options in addition to monetary compensation e.g. apologies, explanations re treatment • Mediation Agreement

32. Challenges of Mediation • Acceptance of Mediation • Optimal time – early in litigation! • “Expensive settlement meetings” • Use of senior counsel as Mediators • Increase in costs if Mediation unsuccessful • Court ordered Mediation

33. Mediation Mediator • Qualified and trained • Specialism in clinical negligence - not essential • Mediators – Lawyers & non-lawyers • Flexible and personal process taking Mediators lead

34. Why an Alternative? Litigation • Robust – Adversarial & Challenging • Not confidential – public & public interest • Inflexible • Lack of options • Lengthy & costly • Patients often don’t feel they get answers • Clinical Staff/Hospitals

35. A Beginning! CIS Pilot Mediation Scheme (2010) • Mediation in practice in clinical negligence cases • Benefits and challenges of Mediation • Encouraged hospitals/clinical staff to engage • Solicitors/Claims Managers trained in mediation • Cases suitable for Mediation

36. Involvement of Clinicians • Clinical Staff, Master, Clinical Director, Senior Hospital/ HSE Managers • Apologies • Explanations • Offer of follow-up • Face to face meeting • Meeting through Mediator

37. Mediation Scheme 2010 to 2012 Pilot Scheme • Mediation proposed by CIS in multiple claims • Initially - very slow uptake • 4 to 6 Mediations per annum • Steady growth of use of Mediation over the last few year

38. Mediation - Evolving • Generally resolved in one day 2013 2014 2018

39. Clinical Cases Settled by Mediation Cerebral Palsy Fatal Injuries Missed/Delayed Diagnosis of Cancer Spinal Injuries Surgical

40. Conclusion • Mediation in clinical cases a real alternative to litigation • A more flexible and compassionate forum for case resolution • Room for more use of Mediation • Mediation Act, 2017 – change for better?

41. THANK YOU

42. How to Get Past Impasse in Mediation Irish Commercial Mediation Association 5 April 2019