Academic journal article Health Law Journal

Healthcare Mediation and the Need for Apologies

Academic journal article Health Law Journal

Healthcare Mediation and the Need for Apologies

Article excerpt

This article looks at the role apology plays in resolving conflicts between patients and doctors. Patients may have a manifest need for sincere expressions of sympathy, which may ultimately help unblock the conflict situation, and even lead to better reparations for the harm done. Moreover, some factors in the current context mean that patients have a very hard time getting apologies. The authors explore mediation as a conflict management mode that is more conducive to apology. Given that mediation still has some limitations in this respect, solutions are put forward to facilitate apology in mediation.

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An apology is one possible response to a gesture, injury, oversight or attitude. There are, of course, other possible responses: denial of the problem, downplaying the other party's pain or even counter-attack. It only takes a few examples from daily life to show us how apologies can influence people. On one hand, think of the spouse apologizing for being late, a restaurant owner who sincerely expresses regret for slow service, or a parent apologizing to a neighbour on behalf of a child who has just broken a window. Then think of these same situations with different responses: a spouse claiming that he was told the wrong time for the meeting, a restaurant owner who defends himself, saying that the wait was not as long as the previous day's, or a parent who blames the neighbour for not having fenced in his yard, allowing children access to it. With the first type of response, a difficult situation is defused, whereas the second and third types of response escalate the conflict.

When the concept of apology is applied to conflict management, especially in a mode such as mediation, we can grasp its full reach in terms of unlocking a conflict situation. This is even more true in the context of a conflict between a patient (or a member of the patient's family) and a physician. In fact, the desire for an apology or another kind of sincere expression of sympathy may be at the heart of disputes in this field. (1) The emergence of apology laws in Canada and the United States also attests to this phenomenon. (2) Apologizing can be the key to resolving the impasse created by a conflict situation. It thus appears essential for mediators to have a thorough grasp of the psychological and legal aspects of apology in mediation.

This article first reflects on the role of apology in conflict resolution, primarily in the field of medicine. The goal is to pinpoint the needs that underlie the demand for an apology, as well as the characteristics of an apology that is effective at defusing a conflict. We then discuss apology's place in the mediation process, as well as exploring mediation's advantages and limits in terms of the dynamics of apology. Lastly, we propose strategies for better incorporating apology into mediation. This approach allows the mediator to better guide the apology process and maximize the use of apology in overcoming impasses in a conflict.

The role of apology in conflict resolution

When we focus on it, we are surprised to realize how many victims--or people who believe themselves to have been harmed--express a need to hear an apology. The media is full of such examples. From victims of sexual abuse to those injured in the contaminated blood case, a very broad range of harm brings out this need for apology. (3) Yet not much attention has been paid to this aspect of conflict in the legal literature.

This may partly be due to the fact that, in North America in particular, the legal system and law in general has not been that interested in the role that apology plays in a dispute. (4) Nonetheless, the topic seems to have attracted greater interest in the last few years; there seems to be greater appreciation for the role that apology can play in resolving conflicts. (5) This is particularly true subsequent to the emergence and use of mediation as a procedure for dispute settlement, as mediation emphasizes the relationship between the parties. …

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