關懷式調解作為複雜型態爭議解決模式之探討──以日本醫療爭議為例

Caring Style Mediation as a Settlement Model for Complex Dispute Resolution: Focus on Medical Disputes in Japan

調解係針對爭議解決，現代型調解自70年代在美國開展以來，有諸多進展，發展出許多不同技巧類型，為能夠清晰說明各種調解之不同，本文嘗試以華人歷史故事兄弟交涉案例－孔融讓梨及其進階版案例為例來逐一說明不同調解技巧間處理的不同方式。對於牽涉諸多因素、價值與情緒的複雜型爭議則以醫案件為例說明。文中第貳段說明傳統、現代與混合型調解類型。現代調解有著不同的調解技巧，這些類型在發展過程中陸續被提出來，且常常它們是以成對方式出現的。大致有七種型式，分別是現代型調解原型、法院調解、討價還價式與治療式調解、狹隘與需求解決式調解、狹隘問題解決式與轉換式調解、評價式與促進式調解與敘事式調解。混合型調解目前有日本的醫療調解與台灣的關懷式調解。第參段以案例說明各種調解類型間處理的差異。第肆段則是以醫療爭議案例說明混合型調解。接著探討關懷式調解及其四個層面的優點。對於這些調解類型中，本文結論建議以混合型調解，尤其是在臺灣以關懷式調解作為複雜型爭議例如醫療爭議的較合適調解模式。此外台灣的關懷式調解可適用於醫療爭議或醫療機構以外的爭議類型或地點，而有別於只能運用於醫院的日本醫療調解。

Mediation concepts can be quite complex. Modern mediation has been established since the 70's in the USA. Since then, there are many developments of different mediation skills. For better understanding of the difference between different types of mediation skill, the author uses a famous Chinese idiom story, a case of a young boy gave a large pear of the two to his elder brother and its advance form with change of dispute item and issue to explain how disputes may be treated differently in different skills with these two cases. As for mixed type mediation skills, a medical dispute case was used for explanation. There are 3 types of mediation explained in section two, i.e.: tradition, modern, and modern development-mixed type. Different modern mediation skills had been postulated during its development. Various types of skill may appear as pair in mediation. There are 7 skill types, namely: original modern mediation, court annex mediation, bargain vs therapeutic, narrowing problem-solving vs needs basis, narrowing problem solving vs transformative, evaluative vs facilitative, and narrative type mediation. Mixed type mediations currently include healthcare mediation from Japan and caring style mediation in Taiwan. In section three, the author used dispute cases to explain the difference between various skill type of mediation, followed with section four, medical dispute case for mixed type mediation. Then, caring style mediation was explained with its advantages in four dimensions. In summary, the author's opinion is that mixed type mediation i.e. caring style mediation in Taiwan is a suitable model for complex disputes such as medical disputes. Furthermore, Taiwan's caring style mediation can be used in disputes other then the one involved in the medical cases or healthcare institutes, hence is different from the healthcare mediation in Japan that is applied only in the hospitals.