Wednesday, September 10, 2008

Mediation in Medical Malpractice Disputes

"An out-of-court settlement mechanism for legal conflicts concerning medical malpractice will be expanded nationwide, according to sources.

"The Japan Federation of Bar Associations has decided to open by next spring more than five medicolegal alternative dispute resolution (ADR) organizations, in the hope they will provide people with a viable alternative to the expense of filing a lawsuit.

"The new organizations will be similar to one jointly established by three Tokyo bar associations last year.

"Under an ADR system, mediators attempt to negotiate resolution of conflicts concerning accidents that occur during medical treatment in response to applications by parties concerned.

"According to the Supreme Court, 944 medical suits were filed last year, up 60 percent from 10 years ago.

"In court proceedings, assessing the legal responsibility of a medical institution or doctor generally takes a long time, due to the difficulty of proving a causal relationship between a course of treatment and an undesirable consequence.

"On average, the duration of such a case is about two years, according to the Supreme Court.

"In light of these factors, some local bar associations have already introduced ADR systems, which had been previously used mainly in disputes regarding traffic accidents and housing standards.

"Along with the Aichi Bar Association, which has a longstanding practice of utilizing ADR, three bar associations based in Tokyo established an ADR system in September 2007 with a specific focus on medicolegal cases, enlisting 30 lawyers with experience in medical lawsuits as registered mediators.

"The mediating process can be initiated at the request of either the patient or the medical institution.

"Each party is provided with a mediator as counsel, and another neutral mediator takes part in the negotiations.

"The system offers both legally binding arbitration, which has legal authority equal to that of the courts, and nonbinding mediation aimed at reaching a mutually agreed settlement.

"All negotiations during ADR are held in closed sessions to ensure privacy.

"The Tokyo organization received 45 applications for ADR as of July, seven of which were settled with either payments--ranging from a few hundred thousand yen to a few million yen--or apologies after two or three mediation sessions.

"Encouraged by these results, the JFBA's ADR center will begin offering ADR for malpractice-related disputes in seven of the eight cities where a High Court is located, the exception being Takamatsu.

"Another alternative to entering the court system is in the works, with the Health, Labor and Welfare Ministry planning to set up a committee for the prevention and investigation of malpractice."

By Yomiuri Shimbun (9/10/2008), Link to article (last visited 9/10/2008)

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