Advocating for mediation as a way to de-escalate conflict, with a focus on medico-legal claims: The anatomy of human conflict

Abstract

The incidence and extent of medico-legal claims in South Africa has increased exponentially over the past number of years. Conventionally, medical negligence claims follow the civil litigation route, while alternative, perhaps better-suited, dispute resolution techniques and mechanisms are seldom considered. Where the occasional disputant does opt for mediation instead of civil litigation, mediators are not adequately versed in the human behavioural factors of conflict, even though these are crucial in establishing an appropriate strategy to de-escalate conflict and achieve settlement. Paying particular attention to medical negligence claims, this article draws on interdisciplinary sources to propose practical guidelines for mediators, whether existing or aspirant, to develop their mediation styles and strategies with regard to the thought processes and psychological factors behind disputes. This occurs against the backdrop of the current failure by formal legal education and vocational training curriculums to equip lawyers and mediators with even a basic understanding of the anatomy of human conflict. Incorporating such teaching into our curriculums could go a long way towards greater and more effective use of mediation to settle disputes, instead of summarily opting for the adversarial, costly and time-consuming route of civil litigation.