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The Significance of Arbitration Agreement in Medical Disputes
Medical disputes can become quite complicated, especially when it concerns medical malpractice. Because of this, many parties may prefer arbitration over litigation in court to resolve disputes. Arbitration services offer more control to the parties involved and can be overseen by a subject-matter expert. These are among the many benefits of this alternative dispute resolution method over court proceedings. To ensure a smoother arbitration process, medical professionals may insist on all parties involved signing an arbitration agreement. Doing so, can help protect the interest of the service provider as well as the patient.
What is arbitration?
Arbitration is a form of alternative dispute resolution (ADR) that offers similar structure to court litigation but more flexibility and control for involved parties. For example, rather than being assigned a judge, involved parties appoint a neutral arbitrator or arbitral panel (usually an odd number to prevent a tie) to whom they present evidence and testimony. The arbitrator then decides the outcome or arbitral award. Further, unlike court proceedings, the arbitrator(s) can also be experts in or familiar with the subject’s conflicts.
The parties can also control the schedules for hearings and select the rules by which the arbitration must follow. Additionally, arbitrations are private, allowing the parties a level of confidentiality that is not usually available with court proceedings. With this flexibility and control, arbitration can take much less time and be more affordable than litigation, which has more substantial costs in court and legal fees.
How does arbitration work for medical malpractice?
Typically, arbitration is a preferred dispute resolution method for businesses. While many would not look at a medical service as a commercial transaction, it fundamentally is one. Also, there could be highly technical, scientific evidence that is more conducive to a subject-matter expert arbitrator than a judge. Furthermore, medical malpractice cases can be sensitive, so all parties, for different reasons, may prefer the privacy of arbitration – medical professionals may not want the reputational risks of a court record, while patients may not like the possible emotional or psychological trauma of a public trial. Additionally, with the lower costs and faster arbitration results, parties can receive decisions more expediently while still being more likely to maintain the healthcare professional’s relationship with their patient.
However, some medical professionals may not want to arbitrate depending on the jurisdiction. There may be no limitations to the amount of an arbitral award compared to remedies available through litigation. On the patient side, some may feel that arbitration may benefit medical professionals more as proceedings tend to be more fact-based than a jury trial’s more emotional impact. Nevertheless, a well-conceived arbitration agreement could mitigate some of these concerns.
What is an arbitration agreement?
An arbitration agreement is a document whereby signing parties agree to settle disputes through arbitration and not litigation. It could be either a standalone agreement or part of an overarching contract. Either way, the arbitration agreement would include such details as the various parties’ rights and obligations, processes, and procedures, how arbitration would be triggered, and arbitrator appointments, to name just a few. Often parties can start with a model arbitration clause, such as those available from the Thailand Arbitration Center, and hone it to meet their needs, ensuring fairness and neutrality. Furthermore, arbitration agreements can set out whether the awards are binding. A binding arbitration agreement, as it states, binds the parties to the arbitration, making any award enforceable by law through the courts.
Pros and cons of arbitration agreements in medical malpractice
As discussed, arbitration in medical disputes has its advantages so that it may benefit all involved parties to enter into an arbitration agreement before undergoing treatment. Please note that it is possible to enter into an arbitration agreement after treatment as long as all parties agree. With such an agreement in place, professionals and patients can have a certain peace of mind as they continue their relationship.
Issues may arise in arbitration agreements for medical disputes if laws are in place that may override such contracts, such as laws specific to medical malpractice, which may limit remedies. Furthermore, while arbitration agreements are only effective if all parties sign, some patients may not be aware of their rights and obligations as they are more concerned about their health when presented with documents to sign before treatment.
THAC can assist with medical arbitration
If you are seeking advice or information on medical arbitration, the Thailand Arbitration Center (THAC) is a renowned resource for alternative dispute resolution (ADR), including as it relates to malpractice. THAC is a full-service dispute resolution center offering state-of-the-art facilities for in-person and remote hearings and a convenient location near public transport and major roads and highways for local participants and parties overseas. This makes THAC ideal for local and cross-border ADR proceedings. Parties can also access highly skilled mediators and arbitrators with subject-specific expertise for an informed and impartial process. Furthermore, a full range of administrative support and innovative online dispute resolution resources are available.
Please feel free to contact us at [email protected] or +66 (0)2018 1615. THAC is looking forward to helping you.
