Procedural Justice

I recently presented at the Association for Conflict Resolution (ACRNC) annual conference in Oakland, California. As often happens at these conferences, I quickly become the learner, not the teacher. There is always at least one nugget that I leave with. At this conference, it was a term I'd not heard before: procedural justice. That was defined as giving justice to the parties in conflict by giving them the opportunity to speak and be heard. That particularly struck me because my interest (and presentation) involves collaborative law, a non-adversarial practice after medical error. At its core, collaborative law in medical error situations gives the parties, patients and physicians alike, a voice in the process and its resolution, as well as an opportunity to speak and be heard, to work together to improve patient safety, and to ask questions and have them answered.

The process begins with the parties entering into a participation agreement, which provides for the parties and their attorneys meeting together to work through the issues of the case, making every attempt to settle it. The process can't work without the parties' participation. The process permits patients and physicians to commit (or recommit) to a trusting relationship. As to the patient, the process gives her/him a voice, possibilitites for resolution not limited by traditional legal remedies, and control over the outcome. As to the physician, it supports openness and healing and removes uncertainty, fear, worry and distraction, all of which arise in litigation. In addition, research indicates that physicians who are sued are more likely to be sued a second time during the initial litigation process because they are distracted and distressed about the first litigation. So, avoiding litigation, we (especially physicians!) can all agree, is the best choice for physicians. Participating in non-adversarial resolution processes like collaborative law, for the reasons set forth herein, appears to be the safest, clearest, and most expeditious process for physicians (and patients).

In litigation and most mediations, physicians have no control over the process and, generally, do not even take part in either process, except for deposition. As to mediations, physicians don't normally attend, even when they express interest in doing so. Instead, only their attorneys and insurance carriers attend, missing a tremendous opportunity for learning and healing.
I remain hopeful that physicians and attorneys can and will work together to make practices like colaborative law part of the culture of healthcare, truly creating a seamless process of healing and procedural justice for all parties.