Mediators should encourage the participants to come to their own conclusions and prevent the problem from escalating
Wherever there are human interactions, it is inevitable that, at times, there will be disagreements. Disagreements can escalate to disputes. However, it is usually the case that, if one peers under the surface, there is common ground to be found.
‘If men would consider not so much wherein they differ, as wherein they agree, there would be far less of uncharitableness and angry feeling’ Joseph Addison (1672–1719)
I have always been interested in the anatomy of disputes. Perhaps this is because I have been on the receiving end of a few. However, I have no problem with analysing and discussing them.
Disagreements can arise in a variety of situations in the aesthetic sphere. It has been said that personnel problems can be the biggest issue for large organisations, and getting to grips with employment law can be daunting. However, for most smaller organisations, the biggest source of conflict is likely to be patient dissatisfaction. This can easily escalate into time-consuming and counterproductive efforts to resolve the problem.
The inception of aesthetics and complaint management
I have been involved with the aesthetic medicine and cosmetic laser industry since its modern-day inception back in the early 1990s. At that time, the only dermal filler substance available was bovine collagen and botulinum toxin for lines and wrinkles was still probably just a vague idea in the mind of a certain Canadian ophthalmologist.
My career began with cosmetic lasers, specifically, tattoo removal lasers. Doctors were at the vanguard of introducing new techniques in aesthetics. Therefore, they became early adopters of procedures. Naturally, being at the forefront of new techniques had its downside, as complaints and disputes about new procedures were inevitable.
Those at the forefront of the explosion in the interest in aesthetic procedures had to be quick learners in the art of complaint management. The fact that these skills were largely self-taught has to be understood in the context of the relationship between doctors and the legal profession at the time. In my opinion, patients soon became aware that the legal profession had taken a keen interest in the burgeoning aesthetic market as a source of new income.
At the time, the current trend of reflection had yet to be popularised, and the maxim of shoot first and mop up the consequences later was commonplace. Throughout my career, I experienced how various internal complaints were handled and, at times, how they were dragged out, rather than enforcing early intervention. In my opinion, the more effective course of action was mediation. As I had always had a background interest, I went through training and became a registered UK civil mediator. I have learnt a lot from my training in mediation. There is much to be said for the concept that skills learnt as a mediator are effective for anybody looking to manage the general disputes of life.
The role of mediator
Generally, most people, or those within various professions, would have very little concept of the mediation process, despite the fact that it is widely used and favoured by the current judicial system in many areas, including clinical negligence.
Various approaches and techniques are used in mediation. The technique in which I was trained has given me a remarkable insight into how the issues within a dispute can be examined by an impartial observer (the mediator) with the intent of helping the two parties come to an agreement which suits them both. Being in the position of a mediator in these disputes puts one in the unique position of being a ‘fly on the wall’ of somebody else's conflict. It is often blindingly obvious to the mediator how the situation could be resolved, but it is not the function of the mediator to impose their views on the participants. Rather, the mediator should encourage the participants to come to their own conclusions.
» Governments have failed to regulate, preferring to adopt a ‘buyer beware’ attitude «
So, this raises the question of why mediation is not so commonly used within aesthetic environments. Mediators come from all backgrounds, and while you do not have to be a lawyer to be a mediator, many are. However, mediation with a mediator who has a sound knowledge of the background to an issue is often an advantage. In many mediations, the participants can be accompanied by their lawyers, who are able to advise about the advisability of settlement on proposed terms.
An avalanche of complaints
In the aesthetics industry, there is little doubt that practitioners experience an avalanche of complaints. Successive governments have failed to regulate, preferring to adopt a ‘buyer beware’ attitude that is backed up with voluntary self-regulation organisations.
In many mediation situations, the complainant may believe that they have recourse to a settlement that is just not feasible given all the circumstances of the case. Perhaps the treatment has been, perfectly legally, conducted by an operator with no indemnity and no registration with a professional body. While it is, indeed, usually an intellectually interesting exercise to open yet another medicolegal case involving a colleague, it is preferable for the mediator to be involved at an earlier stage.
The first obvious block to more cases being mediated is, I am sorry to say, one's lawyer colleagues. Lawyers have a vested interest in maintaining their caseload. Many people now have legal expenses cover included with their house insurance, and this encourages people to take their grievance to a lawyer, who may even be advertising their services.
Over the years, the judiciary has tried to limit the increasing numbers of clinical negligence cases. In England, it is virtually impossible to obtain help from the Government to fund a case through legal aid. The possibility of losing and having to pay the other side's costs would put some patients off pursuing this route.
The other large player in the game is the insurance and indemnity providers. Pursuing a portfolio career often means that one has to have several different policies to cover a range of activities which makes things very complicated.
Something that all insurers and indemnifies have in common is that they like to be informed at the earliest possible juncture when there is any suggestion of a claim being made against them. When a claim is received by the insurers, their first reaction is often to seek a legal opinion.
It seems to me that many of the typical cases that are seen in the aesthetic sector are of relatively low monetary value and would be much better dealt with by the insurers and indemnifies agreeing to early mediation, rather than recourse to lawyers.
A properly drawn up mediation agreement by a registered civil mediator is most unlikely to be reopened in a civil court. Furthermore, although mediation has to be agreed to by both sides, refusal to do so can be used as a tool by lawyers in negotiating any subsequent settlement. This approach would have the advantage of avoiding many of the pitfalls described above.
I know that Hamilton Fraser, which underwrites a significant part of the industry, has an internal mediation facility; however, I am unaware of whether the other principal insurers have the same.