Exploring Mediation in Medical Negligence: Dr. Mary Tumelty
Dr. Mary Tumelty, a Senior Lecturer at the School of Law, University College Cork, recently presented her research at a seminar for the Australian Centre for Justice Innovation (ACJI) at Monash Law.
Her seminar, titled "(Mis)Understanding the Role and Potential of Mediation in Resolving Medical Negligence Disputes in Ireland," delved into the complexities and potential of mediation in the context of medical negligence. Importantly, Dr Tumelty’s work drew on interviews she conducted with barristers about their experiences in mediation.
Dr Tumelty is a visiting scholar at Monash Law who is working with the ACJI. International collaborations like this enrich the academic environment and can lead to new insights and connections that might not emerge within a single jurisdiction.
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The context of medical negligence in Ireland
Dr. Tumelty began by providing an overview of the medical negligence landscape in Ireland, highlighting the ongoing discussions about reform.
"The discussion about medical negligence reform in Ireland has been ongoing for a number of decades," she noted.
Despite similarities in substantive principles with other common law jurisdictions, Ireland lacks pre-action protocols, active case management, and a periodic payment system, which complicates the litigation process.
The role of mediation in medical negligence disputes
Mediation is often promoted as a means to address some of the traditional issues associated with litigation, such as time and cost. Dr. Tumelty's research aimed to understand attitudes and experiences related to mediation in medical negligence disputes.
"I was especially interested in the role of mediation in these disputes as mediation is often promoted as having the capacity to ameliorate some of the traditional ills associated with litigation," she explained.
Key findings from Dr. Tumelty's research
Dr. Tumelty's research revealed two primary findings: the dynamics of medical negligence mediation and resistance to mediation. She identified four sub-themes within the dynamics of mediation: the mediation community, the style of mediation, the timing of mediation, and the format of mediation.
"Significant weight was placed on the expertise and experience of the mediator by barristers," Dr. Tumelty shared.
The preference for mediators with a legal background and specialist expertise in medical negligence was evident. However, this preference also highlighted a challenge.
"The risk with evaluative mediation is that it can encourage polarisation," she noted.
Local insights on medical negligence from Nick Mann
Nick Mann, Founder and Principal of Polaris Lawyers, provided a comparative perspective from the Victorian context. He acknowledged the strengths and weaknesses of the Victorian system, noting similarities with the Irish experience.
"Although we have a huge amount of uptake in mediation in medical negligence cases because the court mandates it, we are still operating in a very narrow way," Mann observed.
The potential for improvement in medical negligence disputes
Dr. Tumelty concluded her seminar by discussing potential improvements to the mediation process. She suggested exploring a co-mediation model, involving both legal and therapeutic experts, and incorporating principles of therapeutic jurisprudence.
"Therapeutic jurisprudence requires a substantive commitment to consider the wellbeing impact on participants," she emphasised.
The seminar highlighted the importance of interdisciplinary research and collaboration in addressing complex legal issues.
Dr. Tumelty's work with ACJI shines a light on the impactful research being conducted at Monash Law and underscores the potential for future collaborations.
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