Tort Litigation Versus Mediation in Medico-Legal Disputes: Evaluating The Limits Of Mediation and Proposals for Reform

Abstract

Mediation has increasingly been promoted as an alternative to litigation in resolving medico-legal disputes. A substantial body of literature critiques the adversarial nature of tort litigation, particularly the evidentiary burdens imposed on patients, the emotional toll of courtroom proceedings, and systemic delays that undermine access to justice. In contrast, mediation is praised for its efficiency, confidentiality, and potential to facilitate amicable settlements in a less confrontational setting. However, despite growing advocacy for mediation, there remains a notable gap in academic discourse concerning its structural limitations especially in the context of medical negligence. This paper addresses that gap by critically examining the current use of mediation in Malaysia and Indonesia, two jurisdictions with distinct legal traditions but similar institutional challenges. Using a doctrinal legal research methodology combined with comparative analysis, this study systematically reviews statutory frameworks, case law, and institutional practices to evaluate the practical effectiveness of mediation in resolving medical negligence disputes. Scholarly literatures are also analysed to uncover recurring procedural and structural shortcomings. The paper argues that while mediation holds considerable promise, it often provides only the illusion of resolution due to the non-binding and unenforceable nature of its outcomes. In cases where patient harm is severe and power imbalances are pronounced, such weaknesses may leave injured parties without meaningful remedy. As a key contribution, the paper proposes several targeted reforms: (1) the introduction of mandatory mediation for appropriate medical cases; (2) the establishment of specialised medico-legal mediation panels; and (3) the granting of legal enforceability to mediated settlements through court registration. These reforms are essential to strengthen public trust in mediation and to ensure it delivers real, enforceable justice in the sensitive context of medical harm.