Guest Speaker Presentation
"ADR in the Health Care Profession"
this material is relevant.
- the abbreviation for Alternative Dispute Resolution - involves arbitration,
three types of mediation, framing negotiation, ombudsmen, and facilitation.
last job you probably had an employee manual that signed away your rights
to go to court and committed you to arbitration. When you get out of school,
there will be an arbitration clause in your employment contract.
signed up to go to Texas Wesleyan, you agreed to mediation procedures (do
a check of the web site and read all about it). More, when you get sued (and
it will happen, even if you never make a mistake), the Judge will probably
send you to mediation. If you've been divorced recently and fought over it,
there is a 50/50 chance you've already experienced some kind of
are ethics questions involving patients, more and more hospitals are using
a special mediation protocol to resolve them.
if things blow up, or even if normal pressures and realignments occur, you
will probably need or experience ombudsmen, complex framing negotiations
or a facilitation initiative.
why this material is relevant to you.
material will be covered.
will be taught by the material.
of arbitration that exists and is used in employment situations found in
health care (vs. baseball player arbitrations and other types).
mediation ("shuttle negotiation" or pure mediation) is and what to expect
if you are involved in a mediation.
ethics issue is mediated.
ombudsman's office works.
vs. complex negotiation, positional vs. needs based
specific questions will be answered.
to go if you need help with a "once every five years" sort of negotiation
(Renegotiating Health Care, one
of the two texts in the field, has a nice set of chapters on framing. BTW,
is the AMA's ADR book).
to go if you need a handbook for dispute resolution
(Managing Conflict in Health Care
is the AHA's ADR book).
select an ombudsman for staff/institutional problems.
ombudsman can function to reduce patient/customer dissatisfaction.
to expect if you get sent to mediation.
to expect if you get sent to arbitration.
material is relevant.
is arbitration, how and why arbitration is used.
is where instead of going to a court, the parties go to a private judge.
is used because one of the parties has included it in a contract.
used to obtain judges who are familiar with the subject matter and who are
less likely to do something irrational, to proceed using simpler rules that
the law uses, to save money, to keep things confidential, and often because
of a belief that the arbitrator will have a bias.
is pure mediation, how and why it is used.
mediation is when the mediator shuttles back and forth, basically making
the negotiation process move faster.
used because it makes things go much faster and resolves 85% of the cases
sent to mediation.
faster saves money. St. Paul Insurance did the first study of savings in
health care litigation and saved significant amounts (see abstracted
is ethics mediation.
it differ from "pure" mediation.
an ethics mediation proceed.
mediation occurs when there are bioethical disputes or, better, bioethical
dilemmas. The image to keep in mind for every dilemma is that of the dialysis
zombie, living dead. Serious issues often arise when:
is futile, surrogate refuses to accept
is expensive, capitation wants to cut losses
are uncertain (are you doing something "for" the patient or "to" the
Examples of bioethical dilemmas
right to know questions
to accept care by an adult or a child
*but* seek a fair and just resolution vs. an intellectually
want to think of the process as a
Consultation rather than a mediation.
from "pure" mediation in that it begins in separate caucuses.
increases honesty and aids in preparation, it allows for internal differences
within each group to work out before joint sessions - covering issues rather
than letting them surface in such a way as to cause increased conflict (i.e.
in front of the patient) It clarifies positions for presentation
mediation has the issue of professional distancing that occurs between health
care providers and the terminally ill.
NOTE: there is a successful program that is being copied and that exists
the following important elements.
true (outside) neutrals: this fits the drive for risk aversion and the disbelief
in true confidentiality that often applies.
future oriented (the patient will live, die or have quality of life issues
in the future).
someone who is not an outside neutral it Provides a facilitator/consultant
who is aware of all the ghosts at the table and creates institutional trust
in the mediator.
choice of mediators it uses (a) trained senior nurses or patient
representatives/social services workers, (b) consultants or staff members
also work well (if the consultant is closely aligned, has historical ties
with, the institution).
it uses will need to be knowledgeable about the legal and ethical issues
in bioethical dilemmas (may need specific training), have access to outside
fact finders when appropriate, trained and skilled in mediation principles
and knows enough medicine to sharpen issues, provide a platform for agreement.
use senior administrators (they will dominate decisions more than you might
expect), risk management staff , hospital attorneys and litigators
of the process
medical fact consensus (may need to start with very basic facts)
consensus, discuss care options (to avoid "lock in")
mediation session for parties.
if the parties are all properly educated.
the parties who need to know more.
if the patient is competent ("decisionally capable" -- a patient may
be capable of choosing a surrogate, but not capable of understanding treatment
options) for decision needed and if surrogate is competent.
about the uncertainty that is part of health care: no matter how much we
want it to be, medicine is not magic.
the case, especially the history of family conflicts (as appropriate).
Legal and Ethical Principles.
Decide/determine who has authority to make decisions
what support is necessary for the decision maker
the principled solution
through to see that the solution is implemented.
the non-health care providers with neutral space where they do not feel pressured
the necessary guidelines in mind (see below)
patient who is capable must be allowed to make their own
comply with applicable law.
can consent for children to receive care, but they are not equally free to
deny care and there may be mandatary reporting if a denial of care occurs.
is an ombudsman (the origin of ombudsmen).
part of Northern European cultures, the movement has not endured well in
the United States. An ombuds (ombudsman in older texts) purpose is to prevent
and resolve conflicts, including competency based disaffiliation, by filling
gaps in communication, educating parties and generally troubleshooting conflicts
before they develop. It is an institutionally neutral position that
works best in cultures that accept the concept of neutrals within a bureaucracy.
In health care, the ombuds is usually retired -- a physician or senior management
or nursing professional. They must be trained, understand that their duty
includes investigation, counseling, fact-finding, and acting as an intermediary
in negotiations and formal mediation.
gets applied to patients. Ombuds as PR.
gets applied to conflict within an organization. Ombuds as problem
do people negotiate and when is each method appropriate.
Simple and win/lose situations.
based. Complex and emotional situations.
mediation: unnecessary surgery in order to discharge a dying patient.
mediation: disagreements as to whether further care is being "done to" or
"done for" the patient.
mediation: the burned patient.
Stephen R. Marsh is adjunct faculty in Southern Methodist University's Graduate
Dispute Resolution program. He has taught Arbitration and Health Care Dispute
Resolution classes there. You may find him on the web at http://adrr.com/.
He is senior litigation counsel at the Zisman Law Firm. You may find his
law firm at http://zislaw.com/.
Definitions (as they apply to health care setting)
Arbitration: The use of a private judge or other neutral to make a
final, private and binding resolution or decision.
Arbitration is often applied to employment disputes and to malpractice claims.
Ombudsman or Ombuds: A neutral person who is designated to investigate
and propose settlements of complaints and issues. Internal Ombuds deal with
conflicts within a hospital, Patient Ombuds deal with patient complaints.
An Ombuds is often established when an institution has a continuing stream
of problems as a prophylactic measure.
Fact-finding: The investigation of an issue by an neutral third party
(often a team) who investigates the issue, determines the facts, and issues
an advisory report.
Fact-finding can often be used in the place of arbitration to educate factions
in conflict in order to de-escalate the problems.
Mediation: Generally mediation is a process where parties examine
their dispute with the help of a third party who assists them in resolving
their conflict. The mediator may make suggestions, play the devil's advocate
and may (in some types of mediation) provide evaluations, but does not impose
Transformative Mediation is the process by which parties learn to
listen to each other and is often used in HR Departments. Pure Mediation
is the process by which negotiation is accelerated by a human shuttle and
is often used in law suits. Ethics Mediation is a variation that combines
fact finding with mediation and is used to resolve ethical dilemmas.
Facilitative Mediation occurs when an outsider (often a consultant) helps
groups work toward resolution of their conflicts, often by educating them
about how to frame and negotiate the issues and is often used in conflicts
between factions (see the case study attached to this outline).