Mediation in "Alder Hey Children’s Hospital Scandal". By Johnson Yesaya.

Scenario

Study the following case which is based on true story and answer two questions below;

“Alder Hey Children’s Hospital in Liverpool had over a period of decades, retained organs of children who had died there. This had occurring without obtaining and consent to retention from the parents. From a legal perspective, each non-consensual retention involved a justiciable assault. 

To deal with the mass nature of the claims (Over 1,000), the claimants were organized as a group litigation. The claim had the potential to take up enormous court time. 

In addition, however, the emotional element of the claim was, arguably, not suitable for litigation. The claimants and defendant agreed to mediation through the Centre for Effective Dispute Resolution (CEDR)”

Qn. A. Provide expert opinion on whether mediation was the best possible solution to solve this dispute or not.

Qn. B. Suppose you are one of the claimants and chosen mediation as the best way to end this dispute, what are the remedies you would put on the table for discussion?

MEDIATION WAS THE BEST MECHANISM TO SETTLE DISPUTE

Mediation is an alternative to violence, self –help or litigation that differs from the process of counseling, negotiation, and arbitration. It can be defined as the processes by which the disputants, together with the assistance of neutral third party or parties, systematically isolate disputed issues in order to develop optional alternatives and reach a consensual settlement that will accommodate their needs. Mediation is a process that emphasizes the disputant’s own responsibility for making decisions that affects their lives. It is therefore a self-empowering process.

Back to our scenario, Alder Hey Children’s Hospital of Liverpool committed justiciable assault for non-consensual removal and retention of children’s body parts and tissues, there was more than one thousand claimants in this dispute, it would be improper to take this matter before court of law due to a number of reasons;

This dispute would last longer before court of law depends on the nature of this dispute. A court of law is too procedural and formal, a matter of evidence before court of law always takes a longtime before comes to an end, it would took decade for all complainants to testify before court of law, so, mediation was the best choice, because proceedings in mediation are not that much procedural which help to speed the case to an end.

Mediation is a “Win Win” mode of decision , adversarial mode of litigation before court is “win all or lose all”. This dispute intended to afford needs of both party, the court decision would have gone too far to terminate hospital’s licence or to imprison officers of the hospital because an offence was criminal in nature. But there was no need for all that to happen, because the hospital was there for public service, its closure would have brought other problems.

It is too difficult to sue jointly in a “representative suit” before court of law. Representative suit is when few people or a person in a group of people sue on behalf of other and themselves in a suit, representative suits needs to be approached careful because there is a lot of requirements to be fulfilled before diving in this kind of suits. In United Republic of Tanzania, under Civil Procedure Code  order I rule 1 allow joinder of plaintiffs but in regard to cause of action which must be the same to all plaintiffs, their reliefs and interest must be common or the same because any different in cause of action or relief between joint plaintiff may complicate the suit. Where there is a different, parties are advised to sue differently.

Back to our scenario, 1000 plus claimants were claiming against hospital, there was a huge chance for these claimants to approach a court with different reliefs which would have destructed a case.

REMEDIES ON TABLE FOR DISCUSSION

Alder Hey Children’s Hospital Scandal ended for claimants being paid a total of 5m Euro each, and hospital’s administration ordered to ask public for forgives to what they did. The following are remedies that i would put on table for discussion;

Compensation, it looks like there was a secret business of human organs between defendant and third parties, they were making profit on illegally acquired product without consent of parents. Parents suffered pain in their hearts for their beloved being treated without care, by removing and distributing deceased’s body parts without consent of parents.

To apologize before public, this is a common thing, when you do something wrong you need to apology. They did a wrong think, and they hard to apologize.

To distribute for free, all retained organs to sick people who need those organs, this would be another remedy to me, because a thief cannot benefit from a stolen thing.

Resignation, all top officers of hospital were to resign from their position because this offence was committed during their reign.

CONCLUSION

We always call ADR as alternative, but in some cases they are basic and better mechanisms in dispute resolution even more than court of law. In court judges only care what does the law say and implement it the way it is, without regarding if their decision gives both parties what was needed especially in civil case. I think in our country we have to empower resolution tribunals because it help to reduce crowd of undecided cases before court.

REFERENCE

BOOKS

Bansal A.K (2005) Arbitration & ADR, Universal Law Publishing Co. Pvt. Ltd, Delhi.

Hornby, A. S, (2002), Oxford Advanced Learners Dictionary, 6th Edition, Oxford university Press, New York. 

JOURNALS AND ARTICLE

Bedman, B “From Litigation to ADR: Brown & Root’s Experience”, in Dispute Resolution Journal. Vol. 50 1995

Berman, Gray, S “Facilitated Negotiation: An Effective ADR Technique” in Dispute Resolution Journal Vol. 50 April, 1995

ONLINE SOURCE

https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgiarticle=1883&context=hlr

https://asauk.org.uk/wpcontent/uploads/2013/08/Why-use-ADR.pdf

https://www.academia.edu/1908629/Dispute_Resolution_Confidentiality_Privilege_Secrecy