Human Resource Challenges

58 PEJ November•december/2010

By Donald L. Mellman, MD, MPH, FACS, FACHE, and Martin J. Adelman, MD, FACS

Mediation in Health Care: An External Solution to Internal Problems

C o n f l i c t M a n a g e m e n t

In this article…

Learn how mediation can help resolve internal conflicts in hospitals and other health care organizations.

Physicians are well aware of the frustrations that can result in disrupted relationships with others—other physi- cians, patients, nurses, administration and payers. Such dis- ruption leads to ineffectiveness in patient care and safety, and considerable costs in time and resources.

Health care is prone to such conf lict because the fears, real and imagined, are faced by all. Because of the nega- tive effect on patient safety and quality of care, the Joint Commission mandated standards for conf lict management that hospitals must meet to achieve certification.

Consider this scenario: The nurse director of labor and deliver y, concerned about

the qualit y of care on her unit, asks for a private meeting with you, the chief medical of f icer. More specif ically, she has the per- ception that there are dif ferences in the qualit y of care delivered by OB specialists and the family practitioners credentialed to perform deliveries and C-sections. She believes that the OB spe- cialists have better outcomes. Data failed to show any statisti- cally signif icant dif ference.

This is a long-standing issue, which has been heatedly dis- cussed at numerous OB peer review committee meetings. This committee is comprised of representatives of the t wo physician groups as well as the labor and deliver y nursing ser vice.

The of ten-inf lammator y arguments center on qualit y of care, but you know an underlying issue is f inancial. You realize this is escalating to the point whereby there may be a “whistle- blower” to the media or to an attorney. You come to the conclu- sion that your repeated attempts to resolve this matter have been unsuccessful, and that it is now imperative that you bring in a neutral intermediar y.

If the parties in conf lict cannot negotiate a resolution satisfactor y to all involved, there are five alternatives:

1. Do nothing and continue with “business as usual.”

2. File a lawsuit.

3. A llow hospital administration or medical staff leadership to decide the solution.

4. Go into arbitration.1

5. Seek mediation.

The first will leave all unhappy and lead to per verse behaviors by the various actors.

The second will be expensive and often not in the best interest of the parties.

The third and fourth choices put the resolution into the hands of persons perceived to have a conf lict of interest (hospital administration or medical staff leadership) or an independent decision maker (the arbitrator).

Either way, the parties will make their case and will have no control over the decision; a decision they have to accept. At least one party, if not all, will be unhappy with the outcome, so the organization will suffer.

With difficult hospital conf licts, mediation is the most effective and efficient method to achieve settlement.

What is mediation? Mediation is a voluntar y, confidential2 process in which

an objective neutral party facilitates dialogue between and among the parties. In addition, the mediator may facilitate solutions to intrapart y disagreement.

Outside of the spontaneous resolution by negotiation by the parties themselves, mediation is the least expensive of the alternatives and gives the parties the most control over the conf lict. Should mediation fail to resolve the issue, one of the alternatives may then be chosen.

ACPE.org 59

and may bring potential solutions from one party to the other.

You discuss the situation with the CEO and the president of the medical staff. Both agree that media- tion is necessar y. You know that you have to have buy-in from the physi- cians involved.

Additionally, you want nursing to have a sense of ownership in the pro- cess. Therefore, you separately bring the chiefs of OB and family practice,

order to keep the mediation confi- dential under state peer review law.

The next step will be inter views with each of the parties, called “cau- cuses.” The purpose of the caucus is to allow the mediator to better understand the issues from each party’s standpoint as well as to get both parties to think outside the box about potential solutions. The media- tor must ask what information, if any, may be shared with the other party,

Success in organizational conf lict resolution requires the buy-in from leadership. After acceptance of the mediation process as the initial formal attempt to resolve the conf lict, the chosen mediator will meet with the parties in joint session to explain the process, gain a basic understanding of the issues and help the parties define a desired conclusion.

Confidentiality must be explained in detail to all involved— they must understand their role in maintaining confidentiality and the severe consequences of a breach. Legal advice should be obtained in

Trained mediators demonstrate neutrality while attempting to understand the dynamics of the conflict, including issues of power.

60 PEJ November•december/2010

Both authors are certified by the Florida Supreme Court in Circuit Civil Mediation.

References

1. In arbitration, it is the arbitrator who, after hearing the arg uments by each of the parties, renders the decision. It is not w ithin the scope of this article to discuss “ binding” vs. “non-binding” arbitration.

2 . Facts of the issues as well as matters that would be illegal to be kept conf idential cannot be held in conf identialit y. Other w ise, all discussions in a mediation are considered conf idential.

3 . Liebman C and Hy man C. A Mediation Skills Model To Manage Disclosure Of Errors A nd Adverse Events To Patients. Health Af fairs, Volume 23 , Number 4 , July-Aug ust, 2004: 22-32 .

She again explains the process of mediation and the need for confi- dentiality. Fortunately, during this session, the parties, in a civil manner, are able to create a set of action items and oversight to improve their pro- fessional relationships and the quality of care in the labor and deliver y suite.

She then relates the solution to you and the CEO. The mediator tells you she remains available to help resolve any problems that subse- quently occur in this matter.

If no agreement is reached, an impasse will be declared. Despite a lack of formal resolution, the parties will have a better understanding of the strengths and weaknesses of their own position and those of the other side. Confidentiality of the proceed- ings, including the caucuses, whether or not an agreement is reached, is to be maintained indefinitely.

The downside of an impasse is that the parties have now given up their control of determining an outcome. The next question would be how to settle the conf lict? The answer would depend on the particu- lar situation as to which alternative is selected.

W hen it comes to mediation in health care, special attention must be paid to the disclosure of errors and adverse events.3 The value of an early interest-based mediation inter ven- tion cannot be overemphasized.

Parties in this situation are often concerned about factors beyond dol- lars. It is often advantageous to have the liabilit y carrier involved in this discussion. W hen adequate informa- tion is available to the parties, resolu- tion can often be achieved. A third- party facilitator is invaluable to this particular process.

as well as the nurse director of labor and deliver y, to discuss this decision. Each accepts the need for a mediator.

Because this is a matter which requires a sensitivity and under- standing of the unique hospital cul- ture, you select an outside physician skilled in mediation. She meets with you and the CEO to gain a sense of the problems. The CEO agrees to her letter of engagement.

She then meets in a brief joint session of the parties (you do not attend any mediation session) where she explains the mediation process, emphasizes the need for confidential- ity, and explains that she will notif y you and the CEO of any agreed upon solution without betraying the confi- dentiality of the discussions.

She then meets with each of the parties to learn their side of the issue. Sharing of information between and among the parties can only be done with specific permission of the source party.

Trained mediators demonstrate neutrality while attempting to under- stand the dynamics of the conf lict, including issues of power. They will respect confidentiality, remain patient with all parties and generate a climate of cooperation.

There may be multiple caucuses and joint sessions prior to resolution. Some mediations may take place over several days. Depending upon the sen- sitivity of the issue, the agreed upon solution may or may not be put in writ- ing and signed by each of the parties.

Finally, any agreed upon solu- tion will be presented to the CMO, CEO and the president of the medi- cal staff. If the matter is of sufficient importance, governance should be notified of the issue and its solution.

A fter the mediator feels that she understands the depth and scope of the problem, and has shared the per- mitted information among the par- ties, she meets with the three parties in joint session.

Donald L. Mellman, MD, MPH, FACS, FACHE, is a coach and consultant on health care policy and management issues. [email protected]

Martin J. Adelman, MD, FACS, practiced head and neck surgery for 30 years before becoming involved in health care mediation.

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