Mediation of Medical Treatment Disputes: A Therapeutic Justice Model

What is the research about?

Mediation, which is a form of alternative dispute resolution, is generally more informal and flexible than court proceedings, but often takes place alongside or in parallel with court cases. When discussing 'medical treatment disputes' this means disagreements that arise between patients, health professionals, family members and others regarding the provision of health and care to the patient herself. Usually the patient will be an adult with impaired mental capacity or be a child below the age of 16, such that they are legally incapable of making their own decision about medical treatment, hence the involvement of healthcare professionals, family members and the courts.

By carrying out this research now we expect to benefit potential users of mediation to resolve such disputes by identifying ways in which mediation can be used in therapeutic ways while acknowledging the potential risks of mediation in this area. For example, we hypothesise that certain approaches to mediation (including, style and process), times at which to mediate and the participation of lay participants may all impact the extent to which therapeutic justice can be achieved. We will also consider whether there is anything specific to the healthcare environment that makes it particularly amenable to, or challenging for, the therapeutic benefits of mediation.

Research questions

• Can, and should, a model of therapeutic justice be developed for use in litigation of medical treatment disputes?
• What are the experiences of professional and lay participants (including healthcare professionals, family members, mediators and, in some instances the subject of proceedings) in mediated medical treatment disputes under the Mental Capacity Act 2005?
• What are the experiences of professional and lay participants (including healthcare professionals, family members and, in some instances, children) in mediated medical treatment disputes that arise in relation to children?

The project will involve original empirical data collection using qualitative methods to explore the current use of mediation in medical treatment disputes. The methods include observations of medical treatment mediations, questionnaires of mediation participants, and interviews with mediation participants (including healthcare professionals, mediators and lay participants such as carers/friends/family).

Our news

We analyse issues that arise relating to medical treatment cases, the role of mediation, justice issues and beyond. Here you will find links to our work and commentaries on a range of issues. 

• September 2022: This book provides an original analysis of the workings of the Court of Protection. It argues for a reimagining of the Court of Protection through a theory of procedural justice, to ensure that access to justice is better achieved for the subject of proceedings. There is a chapter on mediation in the book, which provides original empirical data from an interview study with mediation participants.
• August 2022: This blog post summarises how our project will contribute to debates around resolving conflict between healthcare professionals and family members, following much discussion arising from the Archie Battersbee case.
• September 2020: This report on mediation in the Court of Protection reports on a roundtable held with key stakeholders to discuss the role of mediation in this jurisdiction.
• January 2020: This blog post provides an overview of Dr Lindsey’s research on the role of mediation in improving participation in the Court of Protection.
• Read a summary of some of the key publications from the Medical Mediation Foundation, which one of our Project Consultants, Sarah Barclay, has developed