Vol.1, No.2, 61-64 (2011) Open Journal of Animal Sciences
Copyright © 2011 SciRes. Openly accessible at http://www.scirp.org/journal/OJAS/
Mediation for medical malpractice actions: an efficient
approach to the law and veterinary care
Valeria Quartarone, Maria Russo, Alessandra Fazio, Annamaria Passantino*
Department of Veterinary Public Health, Faculty of Veterinary Medicine, University of Messina, Polo Universitario Annunziata,
Messina, Italy; *Corresponding author: passanna@unime.it
Received 24 May 2011, revised 27 May 2011, accepted 20 June 2011.
Veterinarians today face an increased risk for
malpractice claims in view of increased client
awareness of the benefits of the human-animal
bond and advances in preventive and special-
ized veterinary medicine. An important problem
with medical malpractice litigation is the man-
ner in which malpractice claims are resolved. In
several countries, thousands of claims have
been successfully resolved via Alternative Dis-
pute Resolution processes such as mediation,
conciliation and arbitration. In medical media-
tion, health care providers, patients/animal
owners, families, clergy and attorneys partici-
pate directly in an informal, usually voluntary,
dispute resolution process that can lead to for
unique and promising approaches to resolving
conflicts. Recently in Italy framew ork legislation
addressing mediation has been introduced and
it is also used to resolve medical malpractice
disputes. Given that in Italy medical mediation
is formally a new concept and is still evolving,
an examination is made. The importance of
“mediation” for veterinarians’ civil liability will
be evaluated, underlining how it could become
an important instrument in speeding up the re-
solution of court actions concerning medical
Keywords: Mediation; Alternative Dispute
Resolution; Veterinarian; Malpractice; Legislation
Medical malpractice occurs when a patient suffers
harm, injury, loss or damage to function by a physician,
veterinarian, dentist, pharmacist, therapist or any other
medical care provider who fails to competently perform
his or her medical duties by providing improper, un-
skilled, or negligent treatment to a patient.
Medical negligence can include a failure to diagnose,
improper treatment, and failure to warn a patient of
known risks. In cases of vicarious liability or d irect cor-
porate negligence, claims may also be brought against
hospitals, clinics, managed care organizations or medical
corporations for the mis takes of their employees.
Medical malpractice law is highly regulated by a com-
plex body of rules, which vary from country to country.
These rules include how soon a medical malpractice
claim must be filed; whether the patient must submit the
claim to a malpractice review panel before filing the
claim in court; whether notice of the malpractice claim
must be given to the doctor before filing; what qualifica-
tions are required to be deemed an expert medical wit-
ness for the purposes of testifying; and what statutory
caps exist on the amount of compensation that can be
Professional negligence is the predominant theory of
liability concerning allegations of medical malpractice.
A person who alleges negligent medical malpractice
must prove all four elements of the tort of negligence: 1)
a physician/veterinarian-patient/animal owner relation-
ship existed, so a duty of care was owed by the physi-
cian/veterinarian; 2) the physician/veterinarian violated
the applicable standard of care, giving proof of negli-
gence, generally demonstrated by expert testimony or
obvious errors;3) the physician’s negligence caused the
injury; and iv) the person/animal suffered a compensable
injury, meaning that the injury led to specific damages.
The burden of proving these elements is on the plaintiff;
the healthcare provider is the defendant.
Lawsuits within the healthcare system reduce the
quality of patient care and medical malpractice litiga-
tions can be extremely expensive and unsatisfactory for
every party involved, so it is important to find ways of
saving money and time.
Access to justice, in its widest sense of the effective
resolution of disputes whether through court-based liti-
V. Quartarone et al. / Open Journal of Animal Sciences 1 (2011) 61-64
Copyright © 2011 SciRes. Openly accessible at http://www.scirp.org/journal/OJAS/
gation or alternative dispute resolution (ADR) [1] proc-
esses, is an essential aspect of ensuring the realisation of
the fundamental rights recognised and given protection
by the EU [2,3].
The modern civil justice system offers various ap-
proaches and options for dispute resolution thus pro-
moting access to justice.
Citizens should be empowered to find a satisfactory
solution to their problem which includes the option of a
court-based litigation but as part of a wider menu of
While the courts will always maintain a central place
in the civil justice system, it is increasingly recognised
throughout the world that, in many instances, there may
be alternative and perhaps more appropriate methods of
resolving civil disputes in a manner which may be more
cost and time efficient for all parties.
Merely because a dispute is defined as justifiable does
not necessarily mean that the courts are the only option
to seek redress.
In Italy, the Law aims to facilitate access to dispute
resolution and to promote the amicable settlement of
disputes by encouraging the use of mediation and by
ensuring a functioning interaction between mediation
and judicial proceedings. Mediation is legally enforce-
able in the United States, European Union and Asia. In-
dividuals or business can utilize Veterinary Mediation as
an out-of-court settlement process to avoid lawyer and
court costs.
In law suits relating to claims for medical liability
damages, both in human and in veterinary medicine, the
medico-legal technical consultancy has a key role in
determining whether the event the veterinarian is
charged with (death, worsening of the disease) is actu-
ally due to professional misconduct or to other factors
which will exonerate the veterinarian from professional
responsibility [4,5].
The foregoing brief remarks show how and why legal
proceedings relating to the investigation of medical li-
ability, of whatever kind, take a very long time to reach a
conclusion, because of their complexity and the way in
which this particular responsibility has to be established
and verified in practice. Moreover, in recent years law-
suits against veterinarians have increased exponentially,
with a consequent overloading of the judicial system. So
Italian Legislative Decree (LD) No. 28/2010, which in-
troduces a new procedural method to be activated in the
field of actions for damages resulting from medical li-
ability, is to be welcomed as it should help speed up the
settlement of such legal disputes [6]. It establishes the
institution of mediatio n aimed at reconciliation, which is
an obligatory preliminary stage for those who wish to
take legal action to assert their right to compensatory
damages against a physician/veterinarian considered
responsible for those damages through their professional
In this paper the main objectives and principles of
mediation and conciliation and their role in a modern
civil justice system will be examined.
The importance of the institution of “mediation” for
veterinarians’ civil liability will be evaluated, underlin-
ing how it could become an important instrument in
speeding up the resolution of court actions concerning
medical malpractice.
The inconsistent use of both mediation and concilia-
tion terminology and principles potentially affects con-
sumers, researchers, policy makers, courts and tribunals,
all of whom need consistent and accurate information on
mediation and conciliation. As a result, it is likely that
many disputes that could effectively be resolved through
these methods end up in the courts and tribunals.
Mediation and conciliation, terms often used inter-
changeably, are two distinct concepts.
The term “mediation” is derived from the Latin word
“mediare” which means to be in the middle.
Mediation is an extension of direct negotiation be-
tween the parties, using a neutral third party (i.e., a me-
diator) to facilitate the negotiation process [7]. As a fa-
cilitator, the mediator has no authority to impose a solu-
tion on the parties nor are the results of the process
binding on the disp ut i n g part ies.
Conciliation is a more formal process than mediation
and it could generally involve the engagement of legal
representatives, thus making it a more expensive process
than mediation. There is, however, the added advantage
that should no amicable solution be reached, the con-
ciliator has the duty to attempt to persuade the differing
parties to accept his own solution to the dispute.
When provision for mediation is made in legislative
form, it should be defined as a facilitative consensual
and confidential process, in which parties to the dispute
select a neutral and independent third party to assist
them in reaching a mutually acceptable negotiated
When provision for conciliation is made in legislative
form, it should be defined as an advisory, consensual and
confidential process, in which parties to the dispute se-
lect a neutral and independent third party to assist them
in reaching a mutually acceptable negotiated agreement.
It is evident that the fundamental difference between
mediation and conciliation is the degree of involvement
by the neutral and independent third party in the respec-
tive processes.
V. Quartarone et al. / Open Journal of Animal Sciences 1 (2011) 61-64
Copyright © 2011 SciRes. Openly accessible at http://www.scirp.org/journal/OJAS/
Another important distinguishing feature between
mediation and con ciliation can be found in a comparison
between a rights-based approached to resolving a dispute
and an interested-based approach to resolving a dispute.
Interest-based dispute resolution processes expand the
discussion beyond the parties’ legal rights to look at the
underlying interests of the parties; they also address par-
ties’ emotions and seek creative solutions to the resolu-
tion of the dispute. The focus of these processes is on
clarifying the parties’ real motivations or underlying
interests in the dispute with the aim of reaching a mutu-
ally acceptable compromise which meets the real inter-
ests of both parties. It is generally accepted that media-
tion is a purely interest-based dispute resolution process.
In conciliation, there can be a greater focus on the legal
rights of the parties as opposed to their underlying inter-
On the basis of these considerations, it is evident that
there is a fundamental procedural difference between the
role of the conciliator and that of a mediator.
The conciliator is a more active intervener, and may
have an advisory role on the content and the outcome of
a dispute. A conciliator may make suggestions, give ex-
pert advice and use intervention techniques that not only
actively influence the likely terms of an agreement, but
also encourage all parties to settle. A mediator on the
other hand generally helps the parties to communicate
with each other so that they can identify, clarify and ex-
plore the issues in dispute before they consider their op-
tions to reach a mutually acceptable negotiated agree-
Mediation and conciliation have a statutory definition.
Several jurisdictions have already legislated for me-
diation and provide statutory definitions for the process.
For example, Article 1 of the Austrian Civil Law Media-
tion Act 2003 defines mediation as “an activity voluntar-
ily entered into by the Parties, whereby a professionally
trained neutral facilitator (Mediator) using recognised
methods systematically encourages communication be-
tween the Parties, with the aim of enabling the Parties to
themselves reach a resolution of their d ispute” [8].
Similarly, Section 5 of the Commercial Mediation Act
2005 in Nova Scotia defines mediation as “a collabora-
tive process in which parties agree to request a third
party, referred to as a mediator, to assist them in their
attempt to try to reach a settlement of their commercial
dispute, but a mediator does not have any authority to
impose a solution to the dispute on the parties” [9].
In the United States, mediation is defined under Sec-
tion 2(1) the Uniform Mediation Act 2004 as “a process
in which a mediator facilitates communication and nego-
tiation between parties to assist them in reaching a vol-
untary agreement regarding their dispute”. The Uniform
Mediation Act was drafted by the National Conference
of Commissioners of Uniform State Laws and approved
by it and recommended for enactment in all the states,
August 10-17, 2001 and amended A ugust 1-7, 20031.
The 2002 UNCITRAL Model Law on International
Commercial Conciliation defines conciliation as “a
process, whether referred to by the expression concilia-
tion, mediation or an expression of similar import,
whereby parties request a third person or persons (the
conciliator) to assist them in their attempt to reach an
amicable settlement of their dispute arising out of or
relating to a contractual or other legal relationship. The
conciliator does not have the authority to impose upon
the parties a solution to the dispute”2.
The Centre for Effective Dispute Resolution in the
United Kingdom defines conciliation as “a process
where the neutral takes a relatively activist role, putting
forward terms of settlement or an opinion on the case”3.
In Italy the LD No. 28/2010, specifically, defines
“mediation” as “the activity carried out by an impartial
third party aimed at assisting two or more subjects, both
in the search for an amicable agreement for the settle-
ment of a dispute and in the formulation of a proposal
for the solution of the same”. The term “conciliation”
means, however, “the settlement of the dispute after me-
diation has been carried out”, that is, a solution achieved
through mediation, while the term “Organ of concilia-
tion” indicates the “public or private body where the
mediation process may take place”.
It is important to fully understand what the legislators
were aiming to achieve with the introduction of this
obligatory stage before moving on to the usual legal
procedures so as to make an analysis of possible practi-
cal consequences for the health professions. Analysis of
the principles behind the enabling act whose direction
the Italian Government had to follow when emanating
the related law shows clearly that the legislator’s inten-
tion was to create an alternative system which would be
more agile and speedy than ordinary procedures. Indeed
it is now mandatory for specific civil and commercial
proceedings and is available in all cases for disputes
concerning available rights (that is to say, those rights
for which the holder may act in terms of availability, of
waiver of transfer, thus property rights in general). This
method of dispute settlement is indubitably of great sig-
nificance becau se, even thoug h it is obligator y, it is not a
substitute for the ordinary systems of justice. In other
words, although this procedural stage is obligatory, it
must in no way “preclude access to justice”. Indeed,
1For more details, see the following website:
2Available at www.uncitral.org.
3See www.cedr.co.uk
V. Quartarone et al. / Open Journal of Animal Sciences 1 (2011) 61-64
Copyright © 2011 SciRes. Openly accessible at http://www.scirp.org/journal/OJAS/
even when the professional bodies that are in charge of it
have a requirement of independence (for example,
judges) and offer conciliation/mediation services in the
long-term, they do not h ave the faculty to pronou nce any
decisional sentence (which arbitration bodies may do).
The only pronouncement made by “mediators” which
can produce juridical effects between the parties is the
“Statement of Agreement” which, once it has been ex-
amined by the presiding judge in whose district the pro-
fessional body is and has been found to be both formally
and substantially in order, may become an actual sen-
tence by means of a decree of homologation. It is of in-
terest here to see what bodies may aspire to become an
“Organ of conciliation”. Article 16 of the Legislative
Decree specifies that only those public and private bod-
ies which can guarantee efficiency and reliability will be
permitted to intervene in mediation; inclusion in a spe-
cial register is also necessary.
It should also be noted that the Councils of profes-
sional associations may, after receiving authorisation
from the Ministry of Justice, establish special bodies
from their own staff and on their own premises, to deal
with matters relating to their specific spheres of exper-
tise. Another important innovation, which can also have
a useful deterrent function, is the provision of special
rules concerning the payment of court costs. In contrast
to the rule which has the loser of the case pay the costs,
the regulations examined here contemplate the possibil-
ity that, in those cases where the sentence pronounced in
the ordinary proceedings exactly corresponds to the
agreement set out in the conciliation phase the judge
may decide not to recoup the costs incurred by the win-
ner if the latter rejected the agreement at the earlier stage
and, moreover, sentence him/her to repay the loser’s
costs and a further sum as a contribution to court ex-
penses. The possibility of being sentenced to pay dam-
ages remains, if the judge decides that the party has un-
dertaken a ‘reckless’ lawsuit, as well as a subsequent
sentence to pay the fees of experts who may have as-
sisted the Organs of conciliation in lawsuits where spe-
cific technical knowledge is required.
In the light of the innovations in civil proceedings re-
lating to medical liability disputes, th e institution of me-
diation should be welcomed as, in future, it could be-
come a valuable instrument for settlement of disputes.
By taking a constructive approach, mediation allows the
parties involved to focus on the real interests at stake and
will, if time scales are evaluated appropriately, enable
favourable agreements for all parties to be reached
without long delays.
The advantages of mediation over litigation are its
lower costs, more confidential proceedings, and the de-
gree of control enjoyed by the disputing parties over the
process and outcome. In contrast, the legal system is
public, adversarial, lasts longer, clients and lawyers keep
track of who has treated whom the worst, and creates an
atmosphere of conflict and offers no emotional resolu-
In resolving allegations of medical negligence, pa-
tients/owners tend to favour mediation because it pro-
vides a forum in which they can express their concerns
and may lead to a recognition of the prob lem.
In conclusion, mediation can be effective in medical
malpractice cases in which the patient and the healthcare
professional wish to preserve their relationship or in
which poor communication has led to the dispute.
The authors thank Caroline Keir for her kind correction of the Eng-
lish language of the manuscr ip t.
[1] Meschievitz, C. (1991) Mediation and medical malprac-
tice: Problems with definition and implementation. Law
and Contemporary Problems, 54, 195-202.
[2] EC (1950) Convention for the protection of human rights
and fundamental freedoms as amended by protocol No.
11 and No. 14, Rome.
[3] EC (2000) Charter of Fundamental Rights of the Euro-
pean Union. Official Journal of the European Communi-
ties, 18.12.2000, C364, 1-22.
[4] Panichi, M., Di Pietro, C., Passantino, A. (2003) Errori
professionali e responsabilità del medico veterinario.
Rassegna di Diritto e Legislazione e Medicina Legale
Veterinaria, 2, 35-38.
[5] Passantino, A. (2002) La colpa professionale in medicina
veterinaria. Rivista Italiana di Medicina Legale, 4,
[6] Anon (2010) Decreto Legislativo 4 marzo 2010, n. 28.
Gazzetta Ufficiale della Repubblica Italiana 5 marzo
[7] Fuller, L. (1971) Mediation: Its forms and functions.
Southern California Review of Law, 44, 305-339.
[8] Anon (2003) Bundesgesetzblatt für die Republik
Österreich, pp. 123-133.
[9] Anon (2005) Commercial Mediaction Act, S.N.S. 2005,