Health Care and Mediation

The field of health care today faces escalating problems and changes that directly affect the experiences of patients and the interactions of those working in the system. Hospitals and health care organizations compete over scant resources even as they, along with insurance companies and HMOs, desperately struggle to reduce skyrocketing costs. Conflicts within these organizations reduce the quality of patient care and paradoxically complicate the effort to reduce costs, as conflict itself can be an expensive distraction from providing effective and efficient care. Yet these conflicts have served as a sort of "petri dish" in which the fields of medicine and mediation have become closely and productively linked. The words "medicine" and "mediation" after all, share a lot more than just their first four letters. They are both fields of practice in which an outside party seeks to enhance the healing process, whether it is curing the body or curing relationships.

Conflicts in health care have taught the field of alternative dispute resolution (ADR) a great deal about what occurs in a field of high stakes conflict and complex decision-making. In the words of Getting to Yes author Bill Ury, an active peacemaker for international conflicts, "A hospital makes U.S.-Soviet relations look like a piece of cake." With so many people holding decision-making authority, with the issues so multifaceted, and the stakes at times so high, divisive issues can easily explode into complex conflicts. The mediation field, too, has taught the health care world a good deal about the benefits of building interest-based negotiation techniques into everyday decision-making. This article provides an overview of areas in health care than can benefit from mediation and explores some of the lesions learned in this relatively new field.

Why Mediate?

Those who are responsible for managing health care must integrate a huge volume of information, perspectives, and experiences into every decision. It is difficult, it not impossible, to accomplish that integration by using an adversarial, win-lose negotiation approach. When parties in conflict frame their differences as an adversarial contest, they focus myopically on "winning" the contest instead of searching for a workable long-term solution that all key stakeholders can embrace. Therefore, when the people who contribute to the decision-making process are in conflict – as physicians, hospital board members, senior executives, staff nurses, or other employees often are – the very process of reaching high-quality, cost-conscious, and time sensitive decisions is compromised.

Conflict can be constructive if people recognize and acknowledge it, deal with it, manage it, resolve it, and most importantly, learn from it so that it is less likely to recur. Seen from this perspective, the leadership challenge is to build a culture in which differences are respected and resolved. The creative tension that emerges encourages new ideas, constructive problem solving, and with it, new efficiencies. Cost savings become significant. Staff retention and morale improve. The organization is able to make substantive progress on strategic initiatives. New services can be developed and existing services can be adapted, thereby adding value to the hospital, its staff, and the patients it serves. Those who work in the system know that their voices have been heard, problems are discovered before they escalate, and effective solutions are sought in a timely manner. To accomplish such a change in a health care related organization, its leaders must model conflict resolution behavior and expect other managers to emulate it, making effective conflict management central to the organization's leadership profile.

Making It Happen

The following examples, based on real-life cases, are some of the areas in which mediation can help parties reach a mutually acceptable resolution to their dispute.

Organizational Disputes: When conflict between a hospital and its medical staff remains unresolved, the result is often disruptive behavior, decreased utilization of services, and an intentional effort to shift patient care to competing hospitals. The professional staff – nurses, therapists, and others – are often caught in the crossfire, witnessing the problem, feeling its impact, and yet remaining unable to contribute effective solutions. A mediator can structure a process that brings the parties to the table, assess the issues and points of contention, and create options likely to be acceptable to all sides, thereby moving the parties toward an alignment of interests, and with it, an agreement.

Continuing pressures for cost containment are another common source of conflict. Downsizing, "right-sizing," and other large-scale organizational changes require hospital leaders to make decisions that are often painful. Incorporating a process that has the support and buy-in of key constituents – including Board members, chiefs of services, and affiliated network organizations – can make the difference between a change that is successful and one that inadvertently generates a whole new set of problems. Mediators can be helpful in structuring the change process, especially when friction among working groups is likely.

Similarly, negotiations between insurance companies and health care providers can be helped by the use of mediation. Parties often come to the table seeing the problem solely from their own points of view. A mediator can help develop new perspectives on problems they share, solutions they might be able to develop together, and mutually beneficial incentives to generate a changed set of behaviors and outcomes that meet both of their objectives. By constructively reframing the issues, an insurer can actually help a system to improve utilization management and quality of care, just as a provider can help an insurer better market its services. Providers and insurers share numerous incentives to improve the health of their patient population while lowering costs. Nevertheless, they often sacrifice the potential for finding common ground by fighting over their differences.

Disputes between administrators and their clinical staffs also lend themselves to mediation. This is particularly true when the clinical staff and administration are at loggerheads. Finding a common understanding of the problem and a shared set of solutions is helpful to both sides. Ultimately, administrators and clinical staffs cannot succeed without each other, a point often lost in win-lose conflict.

Professional disputes: Disruptive conflicts can also arise during the consolidation of medical practices, retirement of senior partners, integration of hospital-based practices, and implementation of new income distribution formulas. These conflicts can be very costly to the practices, the physicians involved, and the hospitals in which they work, not only in time and money but also in lost market opportunities. Mediation can be used to help the parties engage constructively with each other, identify and understand their real differences and commonalities, consider options that would be mutually acceptable, and then translate those discussions into meaningful and constructive new agreements. Hospital administrations will often sponsor such mediations. Though they do no have an immediate stake in the outcome of the negotiations, prolonged conflict amongst members of the medical staff in their own backyard has a negative effect on the reputation, morale, and marketability of the institution.

Policy disputes: As the health system experiences dramatic changes in its organization and reimbursement, the interface between the public and private domains has become fraught with conflict. Mediation can be used to facilitate conversations between these sectors, as well as among private organizations as they consider how to address complex health policy issues.

Patient care disputes: A number of organizations across the country are finding that mediation can be a quick and efficient venue for resolving patient-related issues and reducing litigation. Rush North Shore Medical Center in Chicago has mediated over 50 cases, the majority of which have settled with far less time and cost than achieving settlement through litigation. The Massachusetts Board of Registration in Medicine, in cooperation with the Boston-based Center for Health Care Negotiation, instituted a Voluntary Mediation Program to mediate complaints brought by patients against their physicians. This innovative program has found that if a medical treatment results in an adverse outcome or error, patients or family members are primarily interested in:

1. learning what happened or what went wrong;
    
2. receiving an acknowledgement or apology from those responsible; and
    
3. making sure that whatever happened to them and/or their loved ones will not recur.

Building the Bridge Between the Fields

We have seen repeatedly that unresolved conflict leads to losses in market share, reduced income, lost business opportunities and increased frustration among employees. Furthermore, a highly contentious clinical environment creates an environment in which errors are more like to occur. When not promptly resolved, conflict can lead to compromises in patient care.

Many health care leaders lack training or expertise in interest-based negotiation methods, and are turning to courses and literature to enhance their skills. They find that models for multidimensional problem solving can be integrated into the approach they use to frame and resolve complex issues. Forward-thinking CEOs are calling upon experts in negotiation and mediation to serve as personal coaches. Most importantly, the application of mediation in the health care context is creating innovative options for resolving disputes. Many health care executives are "outsourcing" this service, since outside mediators have no direct stake in the outcome, and are therefore far more likely to generate a resolution that key stakeholders consider fair and balanced.

Bringing in someone form the outside is always a delicate decision, but there are at least five signals that it's time to consider calling in a mediator:

1. The costs of not resolving the dispute – in dollars, lost opportunities, and legal fees – are high.
    
2. The problems are complex, and there is a desire to help key decision-makers understand the issues, solve them, and then buy into the resulting agreements.
    
3. The consequences of the dispute going public would be negative for the organization (mediation is private and confidential).
    
4. Old ideas are being re-circulated (a professional outside facilitator can encourage people to think about and explore new and creative options).
    
5. No one in the organization – especially the CEO – can be or even should be truly impartial in focusing parties on the problem and like solutions.

Mediation in Practice

As with any focused field of practice, it is important to have a working knowledge of health care to gain the respect and acceptance of those who would utilize mediation services. Many clinicians, health care managers, public health and policy leaders, attorneys, academics and others with a background in health care are now complementing their expertise with advanced training in conflict resolution. Those credentials are important factors for developing health care mediation as a relatively new field of practice. Does this mean that those without a health care background are excluded from the field? Not necessarily, though they would be cautioned to gain a firm grasp of the organizations, issues, and cultures typical of health care before they seek to enter into the field.

Over the years, the field of conflict resolution has branched from its earliest focus on basic theory and methods of interest-based negotiation into numerous areas of specialized practice. With each step in this process, conflict resolution practitioners have contributed their knowledge and methods to solve new problems and have gained a broader understanding for what alternative dispute resolution is and what it has to offer. The development of negotiation and conflict resolution models and methods applied to health care has followed that very evolutionary pattern. New applications of mediation are making significant contributions to clarifying and resolving complex issues facing health care, just as these unique experiences and perspectives are contributing to advancement of the general body of knowledge about conflict resolution. Ultimately, what we mediators bring to the table is an opportunity to expand knowledge, learning, and understanding, with the hope that those insights provide opportunities for constructive resolution of conflict. And beyond that, we recognize too that each resolution brings its own opportunity to gain new knowledge, learning, and understanding that can be translated into further advancement of this new and exciting arena of practice.