Ms Lee Lee Chan
Singapore, 25 March 2025
Dr. Peter Levine, an American psychotherapist, once wrote, “The paradox of trauma is that it has both the power to destroy and the power to transform and resurrect.” The challenge for caregivers and therapists is how to help a trauma victim to make sense of and move beyond their traumatic experience so they can lead a renewed life.
When considering litigation to resolve a medical dispute, patients and caregivers often defer to their advocate’s advice on whether to take an adversarial or amicable approach to resolving their conflict. To this end, advocates who work with such traumatized clients hold several responsibilities. Apart from assessing the legal merits of the claim, they also have to determine the impact of trial on their client’s well-being.
The patient’s ability to endure the rigour of a court process must be a major factor in the advocate’s strategy. This applies evenly to counsel for the medical practitioner.
In Singapore, it is accepted that medical litigation aggravates the trauma of the patients and caregivers and should be avoided. There are many mechanisms in place to encourage early and amicable resolution of medical disputes. One such mechanism is mediation.
Sage Mediation has seen a steady increase in the use of mediation for medical disputes since its launch in 2019. It has also been engaged to design and deliver healthcare mediation training for senior doctors and hospital administrators. This was done with the support of many leading law firms specialising in medical disputes. There is a clear commitment from leaders in the medical and legal sectors to support the psychological and emotional recovery of patients and their caregivers.
At a recent seminar, Ms. Rebecca Chew, Co-head of Medical and Healthcare Disputes at Rajah & Tann LLP, shared some tips on how mediation can pave the way for healing, recovery, and resolution for patients, caregivers and healthcare professionals:
- Prepare the client with a comprehensive appreciation of the principles and process of mediation. In a medical mediation, the stress extends from the patients and family members to the medical practitioners and their insurers. Counsel should reassure them that the mediation can be suspended if they felt unable to cope with the stress of the moment or needed more time to think through the proposals.
- Explore the client’s expectations and interests and set specific and realistic goals for the mediation. Ms Chew highlighted that counsel’s first task was to fully crystalise the client’s goal in engaging them to assist in resolving the dispute. Having represented, patients and healthcare professionals, she observed that parties unanimously prioritised “closure”. Monetary remedies were commonly sought but this was but one of the available means to achieve the internal healing needed to move on.
- Leverage on the mediator to design the process. Ms Chew shared that in one mediation, she could see that the patient’s family members wanted her clients, the doctors, to acknowledge the patient’s life. After discussions with the mediator and her client, everyone agreed for the mediation to commence with the patient’s life story. The presentation covered the patient’s interests and love for the family and was deeply moving. Making time to listen provided an opportunity for Ms Chew and her clients to express their respect and sympathy. This generated trust and allowed them to conduct the negotiations on substantive terms in a more positive atmosphere.
- Prepare for the patient and caregivers to speak directly to the medical practitioners. Direct conversations can be sensitive and highly emotional. The information flow may be intermittent if the patient is still in the process of recovery. Counsel should work with the mediator to create an environment that is conducive and, if it helps empower the patient to express his concerns and sentiments, arrange for the mediation to take place over a few sessions.
- Balance empathy with firmness. Reflecting further on the same mediation, Ms Chew recognised that some lawyers may consider expressions of emotion inconvenient and even unprofessional. However, in her experience, she has found that being honest about how she felt did not prevent her from remaining firm in advocating for her client’s best interests. On contrary, because she had demonstrated respect, there was a strong emotional resonance and the family members became more open to listening to her explanations and proposals on behalf of the doctor.
- It’s not about winning the argument. In medical mediations, success is not measured by whether one won the argument. It’s a matter of whether one managed to help the other side accept a different narrative. This would effectively open the door for an amicable settlement. To approach the discussions with this mindset, counsel would do well to acknowledge the challenges confronting their client and the other side and set clear goals. Counsel’s support for the client can help inspire the courage that is often needed to overcome the psychological barriers to listening.
- Understand the counter-party’s approach. An amicable resolution requires the collaboration of everyone in the room. Counsel must take into consideration the manner in which the other side has prepared for the mediation, and the way they choose to engage. If the counter-party has shown him- or her-self to be aggressive, then it may be wise to be protective of a client who is psychologically vulnerable. The mediation can start first with more private sessions.
Ms Chew’s presentation reinforced the profound impact that mediation can have in resolving medical disputes and fostering healing and understanding. More importantly, it highlighted that the role of a mediation advocate is not easy and goes beyond legal representation. To properly assist the clients, the mediation advocate has also to assist clients in navigating their trauma and protecting their interests.
As I reflect on my own experience as a healthcare professional in Malaysia, I am convinced that mediation is a valuable tool in preserving the doctor-patient relationship and humanizing the process of dispute resolution in healthcare. The Malaysian government has recently established a task force to explore the practice and conduct of mediation. From the Singapore experience, I am hopeful that their work will pave the way for a more effective and compassionate approach to resolving medical disputes.
This article was originally published by Ms Lee Lee Chan on LinkedIn here.