Tina Popa1, Kathy Douglas2
1 PhD Candidate, Graduate School of Business and Law, RMIT University.
2 Associate Professor, Graduate School of Business and Law, RMIT University
Exploration of emotion is identified in the mediation literature as the opportunity to explore underlying interests and concerns of parties through a discourse that allows for expression of emotions such as anger. The expression of emotion may contribute to the successful settlement of a dispute. Similarly, the therapeutic jurisprudence movement values the expression of emotion for court users. Therapeutic jurisprudence is a philosophy that interrogates the actions of legal actors to consider the impact of their decisions on the emotional life and psychological wellbeing of those affected by our justice system.
One area where expression of emotion may be valuable to court users is medical negligence cases. Litigating in medical negligence can be stressful and nearly all cases are sent to mediation as part of case management. This article explores the role of emotion in mediation in the context of medical negligence cases. This paper draws on data from a doctoral thesis where 24 senior tort lawyers were interviewed about key challenges in medical negligence litigation and mediation. The analysis of the data shows that consideration of emotion is an important part of medical negligence mediation. Lawyers endorsed the value of mediation as a relatively quick, more informal opportunity to settle a dispute. Unexpectedly, they saw emotion not as arising out of the discussion in the mediation. Rather, the participants saw mediation was beneficial to their client because it provided the opportunity to avoid the emotional cost of pursuing a negligence claim. Arguably, lawyers in this study did not capitalise on the opportunity that mediation presents to express emotion in a way that assists parties to obtain emotional closure.
Tina Popa is a PhD candidate and sessional lecturer at RMIT University. Tina teaches the Law of Torts in the Juris Doctor program at RMIT. Her doctoral thesis is exploring the challenges in litigation and mediation of medical negligence disputes.
Associate Professor Kathy Douglas is a lecturer and mediator. She researches and publishes extensively on alternative dispute resolution.