The Tragic Case Of Charlie Gard — Have Been Mediated?

The Tragic Case Of Charlie Gard — Could It Have Been Mediated?

We have all been moved by Charlie’s tragic case, which it seems finally reached the end in terms of legal process with a decision in the High Court yesterday.

As a parent myself, I feel for Connie Yates and Chris Gard.  I also feel for all those concerned with such difficult, heart-breaking decision-making.

This blog is not intended to address the legal issues at stake.  From press reports, however, it seems a decisive factor was that the US neurologist who had been willing to offer experimental therapy had changed his mind following study of a new MRI scan.

What I would like to address

What I would like to address is the following summary of part of the decision which appears on the BBC news website:

‘Mr Justice Francis said he hoped lessons could be learned from the “tragic” case.

He has suggested that parents and hospital bosses who disagree over life-or-death treatment for children should be forced to mediate in a bid to avoid litigation.

“I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be,” he said.

“However, it is my clear view that mediation should be attempted in all cases such as this one, even if all that it does is achieve a greater understanding by the parties of each other’s positions.”‘

As a mediator, this really hit me hard.  Could one really mediate a decision of life and death?

After the immediate shock of imagining what the emotional experience would be like, I reminded myself that mediators should mediate any dispute. This was a dispute, though not like any other.  It would of course take a specially experienced and emotionally resilient mediator to do it. But surely it could be done?   I approached it more rationally as I should.  Mediation is about compromise – what is the compromise between life and death?  What deal could be had?

I would take issue with the expression ‘forced to mediate’.  It is, of course, to a degree a term of art: no one can be forced to mediate.  Indeed the expression ‘forced mediation’ must be an oxymoron.

What is meant by the expression is that, at most, there should be certain ‘sticks’ applied. This may include penalties in legal costs for refusal to mediate or even a stay (?) of the legal action.  I would query whether such ‘sticks’ should be applied in such a case as this.  The parties should only mediate if they really want to do so, whatever their motives.

But we still come back to the life and death question.

On serious reflection, what mediation could have achieved is to have got all the information about Charlie clearly before the parties at the earliest opportunity. It would have been a means within a neutral and calm environment for making sure everyone understood everything and the options which were available. They could then reflect and decide. If there were any options for treatments not previously considered, then the earlier they are pursued, the better. At the very least,the process might help parties to better come to terms with the situation.

We talk about ‘successful’ and ‘unsuccessful’ mediations.  But at the end of the day, I believe all there can be is a successful mediation process. It should, at least, contain the hope that the parties derive some benefit from it — as Charlie’s case tells us in the sharpest way possible.

Anthony Wooding

Managing Partner

Mediation