Mediation in health care: A collaborative journey

Mediation in Health Care: A Collaborative Journey Victoria Hekkers, RN, BS I n health care, the patient is the recipient of a service, another person provides that service, a third party attempts to standardize and regulate the service, and a fourth party creates invoices and expects a fifth party to pay for the service. One misstep in this game of dominoes and the ripplle effect can cause adversity and conflict. In these situations there often is no wrong or right, onlly perceptions of situations, with perceived meanings and motives. Individuals’ emotions and vision n are often clouded in this web of perceptions, and mean-spirited words may be exchanged. Once indiividuals have acted irrationally, they feel compelled to justify their actions, hence the escalatio on of conflict, each party vilifying the other and painting them as the enemy. These types of conflicct abound in health care, consuming time, energy, and money. They divert attention from heath care’s main focus—the patient—and affect everyone’s ability to make wise and levelheaded decisions. TCM 66 January/February 2006 Getting the Disputing Parties to the Table Securing an agreement for dialog on a conflict and getting the parties to the table is the biggest and most formidable task facing the mediator. For a variety of reasons individuals often are hesitant to attend a mediation session. These individuals may be afraid: of the unknown process, that they will lose control, that they will lose power, that they will have to make a concession, that they may not be right, or that they will have to apologize. Likewise, viewing mediation as a touchyfeely lovefest of previously feuding parties can dissuade other angry, emotionally battered individuals from considering a place at the table. Mediation will do none of the above unless the individuals desire it. It is a process in which all parties participate and make the final decisions. There is no judge and no jury, and no one directly influences the outcome of the mediation other than the parties involved. They do not have to settle or can agree to settle on the basis their preferences. The American Arbitration Association reports that more than 85% of all mediations result in a resolution. This is true even when all prior attempts at settlement have failed, the parties are cynical about the possibility of settlement, and the parties have spent substantial amounts of time and money preparing for a trial. There are many reasons that explain the success rate that mediation enjoys, including: • The parties control the outcome of their dispute, unlike litigation or adjudication, in which an outside party imposes a decision. • The investigative nature of mediation allows and encourages parties to consider and better understand each other ’s perspective. This may result in parties considering settlement options that they may have rejected. • The existence and presence of a neutral third party establishes ground rules that make it possible for parties to express themselves and their concerns in a safe, nonjudgmental environment. • The voluntary nature of mediation allows and encourages parties to come to the table, work with the mediator All types of disputes are suitable for mediation, p rovided that all parties a re prepared to negotiatt e in good faith and work toward a mutually acceptable outcome. on an agenda, and make fully informed decisions about the conflict. All types of disputes are suitable for mediation, provided that all parties are prepared to negotiate in good faith and work toward a mutually acceptable outcome. The most crucial question that parties need to decide is what exactly it is they hope to obtain from mediation. Do they want the other party to apologize, do they want financial reimbursement, or do they just want a chance to explain and be heard? Mediation is about compromise. Generally all parties are expected to offer concessions to reach resolution. If the parties want only to be made whole for whatever perceived injury they received, mediation is probably not the appropriate arena. When the parties enter the mediation room, they often sit at opposite sides of the table. The mediator opens the session, describes the process, sets the ground rules, and asks each side to offer a brief explanation of the problem. After assessing points of disagreement and agreement and identifying the key problems, the mediator reframes the issues into agenda items and then focuses the parties on resolving those items. Keeping the parties on task and on the agenda items can become an arduous process and frequently requires private meetings (caucuses) with individual parties to clarify issues and concerns. Mediation may take several hours, a day, or in some cases, several days. The length of the mediation depends on the number of parties, the complexity of the issues, the history between the parties, and how well they have prepared. The length is also affected by the parties’ desire to resolve the dispute. Mediation is much more economical than a hotly contested dispute involving attorneys, courts, and trials. Choosing a Mediator Credibility as a neutral party is by far the most important component of an effective mediator. The parties must believe that the mediator is listening, working the issues equally for each side, and focused on meeting the needs and desires of both parties in any settlement. Mediation Styles Facilitative mediation is a process in which outcome control remains almost entirely in the hands of the parties. The mediator restores communication through a system of checks and balances and helps create options for resolution. This type of mediation offers a structured approach and is the most frequently used technique. In a facilitative mediation, the mediator takes an active role in controlling the process. The mediator asks questions to identify the interests of the parties and the real issues in the disagreement. The mediator then sets an agenda that is based on the real issues and helps the parties explore solutions that benefit both parties. The facilitative mediator manages the process by: • Reassuring the parties that all relevant information will be exchanged and heard or confirm that there is a good reason why it isn’t being exchanged • Providing parties the opportunity to vent • Creating an agenda of real issues • Helping parties design acceptable solutions • Transmitting offers and demands • Working to overcome potential impasses Evaluative mediation works to achieve settlements. The evaluative mediator controls the process and works with the parties by suggesting a variety of possible solutions for resolving the conflict. Evaluative mediators use the caucus (individual meetings with one party at a time) process as a major component of their mediation style. An evaluative mediator usess a great deal of reality testing and negotiating January/February 2006 TCM 67 Platform Areas in Health Care Appropriate for Mediation Insurance reimbursement Levels of care/lengths of stay debates Medical malpractice Partnerships Ethical concerns techniques in assisting the parties in reaching settlement. The evaluative mediator manages the process by: • Creating an agenda of real issues • Helping parties design acceptable solutions • Transmitting offers and demands • Working to overcome potential impasses • Providing reality testing • Providing feedback on the relative merits or weaknesses of claims • Recommending settlement range in some circumstances Transformative mediation is more concerned with helping the parties alter the way in which they relate to each other, helping them recognize each other’s viewpoints. The mediator intervenes in the conversation between the parties to call attention to moments of recognition and empowerment. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the conversation and assists them in talking about what they think is important. The transformative mediator encourages: • Empowerment and recognition • A change in people and their interpersonal relationships • Party reflection, making conscious decision about what they want to do • Empathy for the parties and the situation Depending on the nature of the dispute, one mediation style may be preferred over another. All mediators must avoid the ethical trap of imposing his or her values or agenda. Many mediators can and do use all approaches as the situation demands, switching back and forth between styles to meet the needs of the parties. Some people TCM 68 January/February 2006 Employment issues Financial issues End-of-life issues Vendor relationships Workplace disputes Time and cost of mediation believe that mediators before contracting should disclose which style or styles they use. Substantive Expertise (Is It Necessary?) The issue of choosing a mediator with substantive expertise in the area of the dispute is frequently debated. Minimally, a mediator needs to be credible and able to converse in the terms of the parties’ dispute. Substantive expertise in mediation is generally an asset for the mediator. It can be a liability, however, if the mediator loses his/her neutrality and begins to give advice, thereby depriving the parties of their self-determination. Parties with contract knowledge or technical expertise may try to represent their perspective in technical terms, causing confusion for the other party. Being expert in an area allows a mediator to effectively ask questions that assist parties to assess the strength of their respective cases, as they better understand the other party’s assumptions. The underlying approach to choosing a mediator to help resolve a health care dispute is no different from that in non–health care matters. More often, however, a mediator in a health care dispute should have a health care background. He or she should understand the vocabulary of health care, be familiar with rotating shifts, understand reimbursement and payment issues, and appreciate the many players and their relationships in the health care arena. The best mediators bring thoughtfulness and creativity to the process. They can ferret out solutions that are not readily apparent. They can propose processes otherwise unknown to the parties, and they can attain outcomes that would otherwise elude the parties. Health care disputants must, however, first decide whether they want their mediators to be more evaluative, facilitative, or transformative and have subject matter expertise, process expertise, or both. They also may want to know if the mediator has extensive experience and training at the college level or received training from a community small claims program. Even though these factors apply in non–heath care disputes, they take on additional importance because of the uniqueness of health care. Most mediators receive word of mouth referrals but can generally be located through the local court system, the phone book, or by inquiring at a smallclaims mediation center. It is very common that parties ask the mediator or mediation company for a particular style of mediation and interview the mediator before contracting with them. Transformation of a health care dispute into a resolution is a validation that both parties have been heard and have agreed to accommodate a solution. The art of mediation is a boundless, collaborative journey. Any and all issues can be brought to the table, discussed, and resolved in whatever manner the parties choose. The possible resolutions are limited only by the boundaries of vitality and imagination among the parties. For health care professionals, who are all interdependent, this is an extremely significant step and a necessary artery into the future. ❑ Bibliography Barger N, Kirby L. The challenge of change in an organization. Palo Alto: Davies-Black Publishing; 1995. Goldberg S, Sander F, Rogers N. Dispute resolution, negotiation and other processes. New York: Aspen Law and Business; 1999. Marcus L. Renegotiating health care. San Francisco: Jossey-Bass; 1995. Victoria Hekkers, RN, BS, is the president of Hill Street Group and a certified case manager, mediator, and Myers/Briggs trainer. Reprint orders: E-mail authorsupport@ elsevier.com or phone (toll-free) 1-888-8347287; reprint no. YMCM 351 doi:10.1016/j.casemgr.2005.10.011