Unintended side effects: Arbitration and the deterrence of medical error is an interesting article by David Shieh, published recently in New York University Law Review.
The author argues that the assumed advantages of ADR by compulsory arbitration are not secure. He suggests that:
- costs savings have not been demonstrated;
- the susceptibility of arbitration systems to adversarial manipulation by healthcare providers may lead to systematic bias in favor of healthcare providers; and
- even where an arbitration system is not being run in an adversarial manner by a healthcare provider, the possibility of bias remains due to the repeat player effect.
With thanks to Associate Professor Tina Cockburn for drawing this article to my attention.