Abstract
The aim of the article is to focus upon situations of medical mal practice in Cyprus and to analyze mediation as a possible means of resolving those disputes. Therefore the basic principles and features of mediation as a method of alternative dispute resolution (ADR) method are presented and their application in Cyprus, especially within the contexts of bioethical disputes. Present legislative framework of mediation in Cyprus is examined and supplemented with proposal de lege ferenda. The paper focuses upon examples of using mediation in medical context in other jurisdictions, in particular Italy, Greece, United States and China.
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Notes
- 1.
See further, Walker (2017b), pp. 15–31.
- 2.
On the core principles, key points and process of mediation, see Aubrey-Johnson and Curtis (2012), pp. 3–30.
- 3.
See further, Walker (2017b), pp. 15–16, 28–30, 32–36.
- 4.
- 5.
Walker (2017b), p. 33.
- 6.
Ibid, pp. 237–240.
- 7.
On the implementation of the Mediation Directive in the EU, see the June 27th 2017 Report on the implementation of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (the ‘Mediation Directive’), of the Committee on Legal Affairs of the EU. Rapporteur: Kostas Chrysogonos. Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2017-0238+0+DOC+XML+V0//EN#title1, accessed April 29, 2018. The main findings of the above report, among other, are: Almost all member states opted to extend the Directive’s requirements to domestic disputes too. A number of member states allow the use of mediation in civil and commercial matters, including family and employment matters, while not explicitly excluding mediation for revenue, customs or administrative matters or for the liability of the State for acts and omissions in the exercise of State authority. All member states foresee the possibility for courts to invite the parties to use mediation. 15 member states introducing the possibility for courts to invite parties to information sessions on mediation. Less than half of the member states have introduced an obligation in their national laws to spread information about mediation. The report also noted the need of a balanced relationship between mediation and judicial proceedings.
- 8.
See Walker (2017b), pp. 33–34, 127–130, 229–237.
- 9.
Ibid, p. 229.
- 10.
This is very important for jurisdictions-legal systems where medical mal practice claims are decided by jury and/or the legal costs in litigation are high.
- 11.
Quote of unknown American.
- 12.
- 13.
Walker (2017b), p. 229.
- 14.
Zone of Possible Agreement.
- 15.
Available at: http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf, accessed April 29, 2017.
- 16.
See Hatzimihail (2013), p. 1, http://digitalcommons.law.lsu.edu/jcls/vol6/iss1/3, accessed October 31, 2017.
- 17.
Available at https://www.uv.es/medarb/observatorio/leyes-mediacion/europa-resto/cyprus-mediation-in-civil-matters-2012.pdf, accessed October 31, 2017.
- 18.
See in detail, Plevri (2018), pp. 233–258.
- 19.
Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:En:PDF, accessed October 31, 2017. See Plevri (2018), pp. 238–240.
- 20.
For a short summary of mediation in China, where there is a millennial tradition in mediation, 4 kinds of procedures and 800,000 centers of mediation, see Tang (2014).
- 21.
Article 2 of Law 159 (I)/2012: ““mediation” means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. Provided that, it excludes any attempt that may be made by the Court or judge seized to settle a dispute in the course of judicial proceedings concerning the dispute in question”.
- 22.
- 23.
Article 2 of Law 159 (I)/2012: “In this Law, unless the context otherwise provides- “civil dispute” means any dispute which may be an object of civil proceedings by the meaning assigned to this term by virtue of the Courts Law and includes labor disputes but does not include family disputes. “Commercial dispute” means dispute arising from a commercial transaction between undertakings or between undertakings and public authorities, as this term is interpreted by the Combating Late Payment in Commercial Transactions Law”. See in detail, Plevri (2018), pp. 243–245.
- 24.
Article 3 of Law 159 (I)/2012: “3. – (1) Subject to the provisions of subsection (2), this Law shall be applied to civil disputes, including cross-border disputes. (2) This Law shall not apply - (a) to any civil disputes, whether cross- border or not, concerning certain rights and obligations, for which the parties are not free to decide themselves under the relevant applicable law; (b) to labor disputes which are not included in the cross-border disputes, notwithstanding if no rights and obligations are raised thereof, for which the parties are not free to decide themselves under the relevant applicable law (c) to any revenue, customs or administrative disputes, or matters relating to the liability of the state for acts or omissions in the exercise of state authority. (“acta jure imperii”).
- 25.
Available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32013L0011, accessed October 31, 2017.
- 26.
Available at http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32013R0524, accessed October 31, 2017.
- 27.
See in detail, Plevri (2018), pp. 245–247.
- 28.
Article 15 of Law 159 (I)/2012: “15. -(1) A Court, before which judicial proceedings are brought, in relation to a case that falls within the scope of this Law, at any stage of the proceedings and before the issue of a decision, may (a) invite the parties to appear before it, to inform them on the use of mediation and the possibility of settlement of their dispute by using this procedure; and (b) upon a common request of all the parties or one of them, with the explicit consent of the others, when appropriate and having regard to all the circumstances of the case, postpone the judicial proceedings so that mediation can take place. (2) In the event that any of the parties does not agree to use mediation, the Court shall proceed with the judicial proceeding. (3) In the decision of the Court to postpone the judicial proceeding, issued by virtue of subsection (1) explicit reference is made to the consent of the parties and to the duration of the mediation, which may not exceed three (3) months. (4) With the completion of the time-limit set out in the Court decision, the parties shall inform the Court of the procedure followed and the result of the mediation and may, in case no agreement on the settlement is reached, ask for extension of the duration of the mediation, for a period not exceeding three (3) months. (5) The Court may, in proprio motu, or, at the request of any of the parties, interrupt the mediation procedure before the end of the time-limit provided for by virtue of this section. (6) A Court decision issued by virtue of subsection (4) or by subsection (5) is not subject to an appeal.”
- 29.
Law 3898/2010 titled “Mediation in civil and commercial matters” implemented in Greece the Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters. Regarding the mediation landscape in Greece under law 3898/2010, see in detail, Diamantopoulos and Koumpli (2015), pp. 313–343 and Theocharis (2015).
- 30.
See further analysis and statistics on the Italian model at Giovanni (2017). Αccessed April 29, 2018 and http://www.altalex.eu/content/civil-mediation-how-kick-start-it-italian-experience, accessed April 29, 2018.
- 31.
See Levitt (2017), accessed October 31, 2017.
- 32.
The phrase comes from the poem “An Essay on Criticism”; Butt (1963), p. 160.
- 33.
Three categories of medical errors are error of underuse, error of overuse and error of misuse.
- 34.
Oviedo Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, was opened for signature on 4 April 1997 in Oviedo (Spain). Available at:https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/164, accessed April 29, 2018. This Convention is the only international legally binding instrument on the protection of human rights in the biomedical field. The Oviedo Convention has been ratified by Cyprus on year 2002 and by Greece. on year 1998 (Law 2619/1998). See chart of signatures and ratifications at: https://rm.coe.int/inf-2017-7-rev-etat-sign-ratif-reserves/168077dd22, accessed April 29, 2018.
- 35.
Available at: http://www.cylaw.org/nomoi/arith/CAP148.pdf (1959 edition). Accessed April 29, 2018.
- 36.
Available at: http://www.cylaw.org/nomoi/arith/2005_1_001.pdf (in Greek). Accessed April 29, 2018.
- 37.
Available at: http://www.cylaw.org/nomoi/indexes/2001_1_90.html (in Greek). Accessed April 29, 2018.
- 38.
Bolam v. Friern Hospital Management Committee (1957) 2 All. E. R. 118-28. Another importance case law for Cypriot Courts on the matter of the burden of proof, is that of Bolitho and others v. City Hackney Health Authority (1997) 4 Med.L.R. 381.
- 39.
In this context, hospital authorities are liable for the malpractice of their employees or agents pursuant to their non-delegable duty of care, as the duty is not discharged simply by delegating its performance to someone else.
- 40.
Summary of this ruling available at Harris Kyriakides Law Firm (2017), p. 4, accessed April 29, 2018.
- 41.
Summary of this ruling available at Harris Kyriakides Law Firm (2017), p. 28, accessed April 29, 2018.
- 42.
Summary of this ruling available at Harris Kyriakides Law Firm (2017), p. 38, accessed April 29, 2018.
- 43.
Fraser (2001), pp. 602–607.
- 44.
See, Benesch (2011), pp. 2–5 https://arbitrationlaw.com/library/why-adr-and-not-litigation-healthcare-disputes-dispute-resolution-journal-vol-66-no-3, accessed April 29, 2018.
- 45.
See, Benesch (2011), p. 1, https://arbitrationlaw.com/library/why-adr-and-not-litigation-healthcare-disputes-dispute-resolution-journal-vol-66-no-3, accessed April 29, 2018.
- 46.
See Benesch (2011), p. 2 https://arbitrationlaw.com/library/why-adr-and-not-litigation-healthcare-disputes-dispute-resolution-journal-vol-66-no-3, accessed April 29, 2018.
- 47.
See Ong (2013), accessed April 28, 2018, http://bulletin.facs.org/2013/03/medical-mediation/, accessed April 12, 2016.
- 48.
See in detail, Liebman (2011), accessed April 28, 2015.
- 49.
Hyman (2011).
- 50.
See https://www.uofmhealth.org/michigan-model-medical-malpractice-and-patient-safety-umhs, accessed April 28, 2016, where relevant publications and on line resources are available.
- 51.
Liebman and Hyman (2005), accessed April 28, 2018.
- 52.
Proposals for “Pre-action protocol” and mediation in medical mal practice claim are the content of the presentation/paper of Cypriot Judge Despo Michailidou in the framework of the 1st Scientific Conference on Medical Mal Practice in Cyprus (2011), organized by the Union of Private Hospital and Clinics of Cyprus, pp. 54–70 (67–68). Available at: http://www.cyprushospitals.org/wp-content/uploads/2013/03/IATRIKI-AMELIA.Book_.pdf, (in Greek), accessed April 28, 2018.
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Plevri, A. (2021). Medical Mal Practice and Mediation in Cyprus: Mediation as a Potential Way of Resolving Medical Mal Practice Disputes. In: Bach-Golecka, D. (eds) Compensation Schemes for Damages Caused by Healthcare and Alternatives to Court Proceedings. Ius Comparatum - Global Studies in Comparative Law, vol 53. Springer, Cham. https://doi.org/10.1007/978-3-030-67000-9_5
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