This case involves a physician who has reportedly filed a notice of intention to sue for injuries occasioned to him when the hospital he was working in declined to renew his contract citing the desire to pursue a different direction. The hospital had already given a four-month notice to him because the department in which he was working would follow a different direction and, therefore, his services would not be required anymore. This paper will suggest alternative means of settling this dispute. The alternatives to litigation have been considered because they would save the parties from the lengthy court suites and also the funds that are required to acquire the services of attorneys or even paying court fees.
Arbitration refers to the ADR process that involves a third party in the settlement of a dispute and who makes sure that a binding decision known as an award is reached. In this case, the employee seeks damages for injuries occasioned on him, as a result, of the hospital management terminating his contract and not renewing it because the department he is currently working in seeks to follow a different direction from the one it is currently pursuing. The hospital management has already issued a four month notice as required by law, and therefore everything is seen as having been done within the confines of the law.
If, therefore, this case was to proceed to trial in a court of law, this office opines that the plaintiff is likely to lose the case and this will happen spending a lot of time court. This office, therefore, suggests that the two parties in the dispute i.e. the physician who is the plaintiff in this suit and the hospital who is the defendant in the suit to agree to subject the suit in a commercial arbitration procedure. Bernstein, Ronald, John Tackaberry and Arthur L. Marriott opine that arbitration an ADR mechanism saves the parties in a dispute time and funds that would have been used in a lengthy court battle (Bernstein, 1998). They however opine that the process may prove costly if the parties do not agree on an experienced arbitrator who would assist them to settle the dispute once and for all.
Owing to the fact that in the contract of employment signed by a physician in the presence of the employer, in which there was an arbitration clause that required the parties to first refer their dispute to a neutral arbiter before proceeding to court, this office . Therefore, will advise the hospital management to proceed to court and file an application to stay the proceedings in order to allow for arbitration.
Unlike in arbitration whereby the neutral third party has the power to make a decision that is binding to the parties in the field, mediation involves a third party who merely acts as an umpire to assist the warring parties to reach a viable decision. It is, therefore, a less expensive way of arriving at a decision as compared to arbitration and litigation in court. In the opinion of this office, the physician does not have a case that must be tried by a court of law in order to reach a decision. It has already been stated that the hospital indeed issued a notice of intention to terminate his contract because the department in which he was working wanted to pursue a different direction which did not leave an opportunity for his services to be in demand. That was the legal course of action to take and therefore it would be cheaper to agree on a neutral third party to mediate on this field.
Mediation may, however, in the opinion of Brown H and A Marriot, prove to be an unreliable way of solving this dispute because the neutral third party does not have the powers to make a decision that binds the parties. (Brown H & A Marriot, 2011). If the parties were to disagree; therefore, they would have to proceed the court way and shall therefore have wasted a lot of time. This will be a drawback on the part of the parties and would later regret not having proceeded the court way.
It is the opinion of this paper, therefore, that despite the cons that appear to undermine mediation, it would still be a viable option to a lengthy and costly litigation in court.
3. Structuring a settlement
Alternatively, the two parties in the dispute i.e. the physician and the hospital management could also decide to arrive at a settlement that saves them both time and money in court. This can be done with the assistance of the attorneys of both parties who would then also assist them to file the same in court, and the court will be ready to adopt it as its decision if it was done on oath and supported by an affidavit. The advantage that accrues out of this process is that the parties do not waste their time and money going to court but instead utilizes their wisdom and the expertise of their attorneys to reach a viable settlement. The same will then be filed in court as a binding decision. The process may however be undermined by the fact that the parties may not know what the most suitable settlement of the dispute would be without the help of experts.
This office has made a number of suggestions as alternatives to court litigation in this case. It is therefore incumbent upon the management of the hospital and the physician to decide which one is more applicable, based on the pros and cons discussed therein.
Bernstein, Ronald, John Tackaberry & Arthur L. Marriot. (1998). Handbook of Arbitration Practice. Sweet & Maxwell, London.
Marriot H & Brown A. (2011). ADR Principles and Practice, 3rd ed. . Sweet and Maxwell.