Mediation in the Health Care System: Creative Problem Solving [1]

Sybblis begins Mediation in the Health Care System by providing a brief overview of mediation, and then contrasts mediation with negotiation in the health care context. She explains that unlike negotiation where adversaries see their dispute as "primarily a distributive contest over who gets the largest piece of the targeted resource[,]" [2] mediation aims to empower parties, employ creative problem-solving techniques, and maintain preexisting relationships. Adversarial negotiation is often a feature of, or a prelude to, resolving a dispute in litigation. The author argues that mediation can be much more effective than litigation in resolving claims of medical negligence because mediation is less expensive and more efficient, it can take into account monetary and non-monetary values, and it facilitates communication between the parties.

In Part I of her article, the author gives readers some background on medical malpractice and the nature of medical error. In the United States, it is estimated that 150,000 deaths are caused each year by physician and hospital negligence, while medical error is thought to be responsible for approximately 98,000 inpatient deaths annually. Medical error is defined as "'a mistake, inadvertent occurrence, or unintended event in health care delivery which may, or may not, result in patient injury.'" [3] Sybblis notes that the health care system is extremely complex and as a result, has a high potential for failure and error.

The author calls attention to many of the criticisms leveled against the use of tort litigation to resolve health care disputes, in particular the claims that litigation does not provide injured patients with an appropriate remedy and its failure to advance any useful public policy objectives. A further criticism of health care litigation is that it does not achieve the primary goal of the health care system: healing. Litigation severs previously fractured relationships and makes reconciliation difficult. In contrast, mediation, through its emphasis on cooperation and communication, has the capacity to salvage relationships. Moreover, mediation can promote dialogue about system wide failures and the steps necessary to avoid repetition of problems in the future whereas in litigation, "fear of punishment simply does not promote error elimination nor does it maximize system performance[.]" [4] By advancing communication between the parties, Sybblis believes that mediation promotes better quality healthcare. From an efficiency standpoint, even if mediation does not result in the definitive settlement of a dispute, the parties have had the opportunity to narrow down issues in dispute for any ensuing litigation.

Part II of the article consists of an exploration of the transformative potential of mediation in the health care system, examined in the context of (1) the parties' interpersonal relationships and conflict management; and (2) efficiency-related enhancements. As far as the first context is concerned, Sybblis posits that mediation is an appropriate dispute resolution mechanism when parties have an ongoing relationship that needs to be salvaged, when the dispute is complex and would benefit from creative solutions, and when a failure in communication between the parties is the cause of the dispute. In particular, the author explains that medical malpractice claims often deal with personal and sensitive subject matters and she suggests that the flexibility of mediation will allow the parties to create a process tailored to be effective in solving their dispute, unlike litigation with its one-size-fits-all approach. Moreover, Sybblis recognizes that mediation emphasizes party participation and self-expression, making it more likely that parties will be satisfied with, and accepting of, a settlement achieved through mediation rather than one stemming from litigation. Perhaps most importantly, mediation is able to address the emotional needs of parties to a health care dispute. Mediation opens channels of communications and allows doctors to "freely discuss why certain treatment options were selected," [5] counteracting the impressions of patients and family members who may see doctors as uncaring. In addition to doctor-patient disputes, Sybblis suggests that mediation can be effective in bioethics consultations, the result being "bioethics mediation" which "combines the clinical substance and perspective of bioethics consultation with the tools of the mediation process[.]" [6]

Efficiency related enhancements provide the second context for Sybblis' examination of the transformative potential of mediation. As is well documented, mediation can eliminate many of the high transaction fees associated with settling a dispute through litigation. A consequence of the high cost of litigation is that many patients who have small malpractice claims avoid bringing cases as costs are prohibitive. The author believes that the availability of mediation as a dispute resolution mechanism would encourage patients with small malpractice claims to resolve their cases. From the perspective of the health care provider, mediation would normally be preferred over litigation because the transaction costs are lower and also because mediation allows disputes to remain private, protecting the provider's reputation with the public. Even if the monetary return from a mediated settlement would be less than what a party could achieve through litigation, Sybblis argues that parties to a mediated settlement "find value in the process itself" [7] through self expression and having control over the process.

In Section C of Part II, Sybblis addresses potential obstacles to using mediation to resolve health care disputes as well as misconceptions about the practice. One significant obstacle "involves uncertainty concerning confidentiality and privilege in some jurisdictions." [8] The natural fear of patients and health care providers is that statements and disclosures made in mediation could potentially be used against them in any ensuing litigation. Such fears would chill communication in any mediation session. A particular concern for health care providers is whether they would be required to report settlement payments from mediation to the National Practitioner Data Bank, a requirement that would almost certainly discourage doctor participation. Several of the misconceptions about mediation in the health care field identified by the author stem from mediation confidentiality. There exists a worry that mediation confidentiality would allow incompetent doctors to remain undetected and that mediation does not establish a precedent to guide future claimants. Moreover, from a patient perspective, concern exists that mediation does not account for power imbalances and that it results in lower settlements than could be achieved through litigation. Sybblis counters these misconceptions about mediation in the health care field by arguing that mediation benefits the public interest by facilitating patient-doctor communication and by enabling patients with smaller injuries to bring claims. The author also addresses the problem of potential power imbalance and says that the aim of mediation is to achieve balance between the parties and promote a creative approach to problem solving, but urges that "[m]ediators must be trained to spot and neutralize power imbalances." [9]

The author uses Part III of the article to discuss institutionalization and uniformity in mediation, and also current ADR programs in the health care system and the future of health care mediation. Sybblis points to a number of benefits that result from institutionalization of a mediation program. Instituted mediation is gives the process an air of legitimacy that may elude an ad hoc process and institutional mediation also provides a structured forum for patients and doctors to frankly exchange their views. From a patient perspective, one of the foremost benefits of institutional mediation is that health care providers are well positioned to address recurring problems and make new policy decisions. Less positively for patients, institutional mediation programs may be seen as biased towards the sponsoring institution and the author thus urges that "emphasis has to be placed on the need for impartiality in establishing institutionally sponsored mediation programs." [10] Sybblis cites to research showing that a decline in public trust of health care institutions is potentially damaging to public health as people who trust their health care providers are much more likely to seek treatment when sick and follow a doctor's orders. Recognizing that past examples of institutional health care mediation did not achieve the necessary patient-doctor communication to arrive at the goal of mutual understanding; Sybblis suggests that the institutional mediation programs could be "assessed in terms of 'quantifiable increases in medical trust generated by these programs.'" [11]

Concerns about uniformity of institutionalized mediation programs, including the necessity of uniformity and the impact that uniformity would have on the mediation process, are briefly discussed by Sybblis in Section B of Part III. The author notes that the Uniform Mediation Act (UMA) could impact the functioning of institutional mediation programs and that it includes provisions addressing mediation confidentiality, disclosure of conflicts of interest, admissibility of statements made during mediation, and the disclosure of mediator qualifications. The author, in Section C, analyzes ADR programs currently in use in the health care system. Sybblis explains that the standards and requirements for mediation programs vary from state to state, particularly when a number of states have not ratified the UMA. The author calls attention to a mandated mediation program used in Michigan where a panel is charged with mediating disputes arising in the health care system. In the Michigan program, the parties are free to nominate health care professionals to serve on the panel, but otherwise, a five member panel "'made up of lawyers and health care professionals, [hears] 15 minutes of testimony from the plaintiff's and defendant's attorneys and . . . determine[s] the amount of recovery, if any. If both parties accept the mediation evaluation, the case is settled by mediation.'" [12] Sybblis is skeptical about the Michigan process, noting that it is not typical of the classic or traditional mediation process, and suggesting that even though the system is efficient, the parties are not realizing the true benefits of mediation. She reiterates that mandatory mediation programs should take advantage of opportunities to facilitate communication and collaboration between the parties. To this end, Sybblis urges that "the criteria for assessing which cases may be resolved by mediation needs to be critically assessed." [13] In Section D, the author argues that mediation should be used as a first step in resolving medical malpractices claims, as mediation empowers parties to resolve their own dispute. Numerous benefits would flow from using mediation as a litigation gatekeeper, namely streamlining dockets, saving money, and allowing injured patients to quickly recover. Moreover, even if a dispute moves to litigation, Sybblis believes that mediation opens up the lines of communication, making a pre-trial settlement more likely. In spite of the benefits that mediation can offer, the author believes that mediation should "remain a voluntary and flexible system to ensure that disputants feel free to communicate and explore options." [14] She believes that mandatory mediation programs in the health care field should be of limited duration, and that mandatory programs should remain faithful to the principles of classical mediation, with a view to achieving long term policy change.

In her conclusion, the author explains that a mediation system employed in the health care field should achieve four goals, to wit: (1) compensating patients injured by negligence; (2) motivating doctors to improve the quality of care provided and reduce negligence; (3) preserving the doctor-patient relationship; and (4) achieving optimal cost efficiency. Although she recognizes that mediation cannot be a panacea for all of the problems facing the health care system, Sybblis suggests that mediation may allow individuals to resolve disputes and move on with their lives. Anyone who regularly reads the newspaper or follows political campaigns is well aware that many predict a difficult future for American health care. In her article, Sybblis identifies how mediation could be used to improve upon the current system of settling medical malpractice disputes, one of the most serious problems impacting our ailing health care system.

[1] Sheea Sybblis, Mediation in the Health Care System: Creative Problem Solving, 6 Pepp. Disp. Resol. L.J. 493 (2006).

[2] Id.at 494.

[3] Id. at 495 (citing Bryan A. Liang & Steven D. Small, Communicating About Care: Addressing Federal-State Issues in Peer Review and Mediation to Promote Patient Safety, 3 Hous. J. Health L. & Pol'y 219, 222 (2003)).

[4] Id. at 498.

[5] Id. at 501.

[6] Id. at 501-502.

[7] Id. at 504.

[8] Id. at 505.

[9] Id. at 508.

[10] Id. at 509.

[11] Id. at 511 (citing Robert Gatter, Institutionally Sponsored Mediation and the Emerging Medical Trust Movement in the U.S., 23 Med. & L. 201, 208-209 (2004)).

[12] Id. at 513-514 (citing Walter Orlando Simmons, An Economic Analysis of Mandatory Mediation and the Disposition of Medical Malpractice Claims, 6 J. Legal Econ. 41, 41 (Fall 1996)).

[13] Id. at 514.

[14] Id. at 516.