scholarly journals Medical Negligence Dispute in Malaysia: Choosing Mediation as the Best Constructive Approach to Address the Paradoxes in Medical Negligence Claims

2016 ◽  
Vol 4 (2) ◽  
pp. 202
Author(s):  
Maizatul Farisah Mohd Mokhtar
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Burden Of Proof ◽  
Fault System ◽  
Personal Injury ◽  
Medical Negligence ◽  
Constructive Approach ◽  
Medical Practitioners ◽  
Adversarial System ◽  
Heavy Burden

In professional negligence the most challenging and arduous is medical negligence, which consists of various claims. Medical negligence will usually involve doctors and other medical practitioners. In medical negligence the claimant is allowed to bring a personal injury claim to a court which has the jurisdiction under adversarial system. However it is evident from reported cases that medical negligence claims were mostly unsuccessful. The reason lies on the notion of the burden of proof, which cast a heavy burden on the plaintiff according to the fault system. In medical negligence claims, plaintiffs will more often than not, find it very difficult to discharge their burden of proof. In most countries, professional negligence claims are recommended to be dealt with by way of mediation under Alternative Dispute resolution (ADR). Mediation is believed to be easier than litigation and is less complicated. Malaysia is among those countries which has enhanced significantly the utility of ADR. This paper will endeavour to address the problems in proving medical negligence cases by using one of the strongest tools of ADR which is mediation.

scholarly journals Medical Negligence Dispute in Malaysia: Choosing Mediation as the Best Constructive Approach to Address the Paradoxes in Medical Negligence Claims

2016 ◽  
Vol 2 (2) ◽  
pp. 202
Author(s):  
Maizatul Farisah Mohd Mokhtar
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Burden Of Proof ◽  
Fault System ◽  
Personal Injury ◽  
Medical Negligence ◽  
Constructive Approach ◽  
Medical Practitioners ◽  
Adversarial System ◽  
Heavy Burden

In professional negligence the most challenging and arduous is medical negligence, which consists of various claims. Medical negligence will usually involve doctors and other medical practitioners. In medical negligence the claimant is allowed to bring a personal injury claim to a court which has the jurisdiction under adversarial system. However it is evident from reported cases that medical negligence claims were mostly unsuccessful. The reason lies on the notion of the burden of proof, which cast a heavy burden on the plaintiff according to the fault system. In medical negligence claims, plaintiffs will more often than not, find it very difficult to discharge their burden of proof. In most countries, professional negligence claims are recommended to be dealt with by way of mediation under Alternative Dispute resolution (ADR). Mediation is believed to be easier than litigation and is less complicated. Malaysia is among those countries which has enhanced significantly the utility of ADR. This paper will endeavour to address the problems in proving medical negligence cases by using one of the strongest tools of ADR which is mediation.

Medical Malpractice: A Challenge to Alternative Dispute Resolution.

1988 ◽  
Vol 3 ◽  
pp. 227-245
Author(s):  
Chester N. Mitchell ◽  
Shona McDiarmid
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Medical Malpractice ◽  
Cost Effective ◽  
The United States ◽  
Public Law ◽  
Economic Power ◽  
Adversarial System ◽  
Considerable Debate ◽  
Fault Compensation

Ideally, medical malpractice actions should deter medical negligence and compensate victims in a manner that is fair, speedy, cost-effective and accessible. Tort critics, however, argue that tort law in general and malpractice actions in particular do not match this ideal. But there is considerable debate about whether the identified faults are inherent or optional in tort adjudication. Those who believe adjudication itself is faulty propose alternative strategies including no-fault compensation schemes, public law prosecution and arbitration. In the paper's first section we consider whether the performance of the traditional adversarial system of dispute resolution in medical malpractice cases is inadequate. Arbitration's effectiveness as an alternative to litigation is then evaluated with reference to three arbitration models employed in the United States. We conclude that arbitration reforms offer distinct advantages but are no panacea for some basic justice problems that stem from political, legal and economic power imbalances between physicians and their clients.

48. Litigation

2018 ◽  
Author(s):  
L. Bently ◽  
B. Sherman ◽  
D. Gangjee ◽  
P. Johnson
Keyword(s):  
Intellectual Property ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Burden Of Proof

This chapter introduces some of the more important aspects of intellectual property litigation. It begins by considering who can bring proceedings and who can be sued with respect to infringement before discussing how evidence is obtained and preserved, with particular reference to disclosure orders and search orders. In addition, the chapter looks at presumptions that alter the normal burden of proof; unjustified threats of infringement; special courts and tribunals that deal with the technical nature of intellectual property litigation; parallel proceedings and the problems that they raise; the use of experts in litigation; and jurisdictional issues and conflicts of law. Finally, it examines alternative dispute resolution as an approach to resolving disputes concerning intellectual property.

CommentsDimensions of Quality of Justice

2021 ◽  
pp. 377-381
Author(s):  
Ellen E. Deason
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
The Other ◽  
Single System ◽  
Adversarial System ◽  
The Law

In her 1991 article, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or “The Law of ADR,” Professor Carrie Menkel-Meadow identified the dynamics of change in the legal landscape as courts embraced dispute resolution. She asked if alternative dispute resolution (ADR) would transform the courts as they became sponsors of these programs, or if the adversarial system would co-opt dispute resolution innovations. Menkel-Meadow identified ways in which both institutions could alter the other, but her answer to this question centered on the deleterious effects of court institutionalization on dispute resolution. Just as important as her answer, however, is that she asked and explored the questions, identifying important tensions in the values underlying court adjudication and private settlement. Those tensions persist and continue to influence what has become today, in many ways, a single system combining litigation and dispute resolution....

scholarly journals Alternative Dispute Resolution (ADR) Hybrid in Cameroon as a Form of Legal Protection for Consumers of Defective Products

2021 ◽  
Vol 8 (1) ◽  
pp. 54-69
Author(s):  
Egute Amandong
Keyword(s):  
Dispute Resolution ◽  
Risk Taking ◽  
Alternative Dispute Resolution ◽  
Lower Cost ◽  
Low Cost ◽  
Legal Protection ◽  
Judicial System ◽  
Adversarial System ◽  
Consumer Complaints ◽  
Court Process

As part of the awareness creation exercise, this paper seeks to establish that consumers of defective products in Cameroon should be exposed to the various extra-judicial channels once they can be adopted by Government and through which the consumers can enforce their rights. This is known as Alternative Dispute Resolution (ADR). The acronym ADR is a group of flexible approaches which could be applied in resolving disputes related to defective products more quickly and at a lower cost than going through the tedious road of adversarial proceedings. ADR mechanisms generally are intended to mean alternatives to the traditional court process. Their adoption will involve the use of impartial interveners who are referred to as “third parties” or “neutrals”. On the whole, the choice of a consumer redress mechanism is a choice between judicial and non-judicial mechanisms. The paper argues that, considering the difficulties encountered by the consumer within the adversarial system, the non-judicial mechanisms are more impactful and satisfactory to consumers than the judicial. It is equally argued that the judicial mechanisms depict a certain level of risk taking, that is, the risk of winning or losing and hence going without a remedy. This risk factor is much lower in the non or extra – judicial system or mechanism which reveals that in appropriate circumstances, the producers using the good customer relation basis, are minded to compensate even where the consumer’s claim is baseless. In this wise, it is therefore necessary to encourage the utilization of the extra - judicial mechanisms in resolving consumer complaints. Expediency, speed and low cost no doubt support this call.

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

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