Taking medicolegal mediation from principle to practice: A South African venture

To the Editor: Medical negligence litigation in South Africa (SA) is increasing at an exponential rate (Table 1).[1] The prevailing legal culture defaults to resolving medicolegal disputes through litigation, which is primarily adversarial, egregiously costly and time-consuming and does not address extra-legal imperatives for reconciliation.This conventional approach demonstrates little appreciation for alternative dispute resolution (ADR) strategies that may be better suited to the SA context.[2] Mediation may offer a non-adversarial ADR strategy that proves to be cost-and time-efficient.It creates a conciliatory environment that fosters open and honest communication, allowing clarification of events, extending apologies and identifying durable and mutually acceptable non-monetary solutions.Socioeconomic benefits include decongested court rolls, freeing resources for healthcare, reducing medical insurance premiums and minimising defensive medical practices.[3-5] In theory, this should promote the use of mediation as the preferred dispute resolution mechanism, but in practice, it has not been the case, despite impetus from the legislature and the judiciary.Effective from 22 April 2025, the Gauteng High Court issued a practice directive introducing mandatory mediation in both the divisions of that court.[6] The directive is intended to ensure access to justice and effective litigation services within reasonable timelines.It applies to all civil trials and contains a detailed protocol that guides the process of conducting court-annexed mediation.[6] Reports from the Gauteng Department of Health indicate significant reductions between the initial amounts claimed and the amounts settled upon after mediation.[7] This demonstrates how cultural, institutional and individual change is necessary to take medicolegal mediation from principle to practice (information on file with the corresponding author).Research and education offer an opportunity for engaging stakeholders from an impartial perspective, informing the transformation of cultural norms and values.In SA, empirical data on perceptions of the use of mediation to resolve medicolegal matters, mediation training curricula, statutory regulation of mediation and mediation outcomes are virtually non-existent.The MPS (Medical Protection Society) Foundation is funding a research initiative from the University of the Free State (UFS) Mediation Working Group comprising members of the UFS's Faculty of Law, School of Clinical Medicine and a private sector liaison, who are currently investigating the influence of knowledge, attitudes and behaviour of healthcare professionals, legal practitioners, private healthcare institutions, medical professional indemnifiers and accredited mediator training programme directors around mediation in SA.The information acquired in the process, specifically exploring an acceptable mandatory pre-mediation clause, will be tendered for universal inclusion in informed patient consent forms -further pioneering empirical research in this area.