A recent survey was conducted of 24 provincial and territorial medical and nursing licensing agencies measuring their use of alternative dispute resolution (ADR) in the professional disciplinary process. Twenty of the 24 licensing bodies responded to the survey and 15 out of 20 indicated some use of alternative dispute resolution.
The results indicate that there is quite widespread use of ADR. Those organizations using some form of ADR cover 90% of physicians and 70% of nurses in Canada. The extent of application was quite variable with three groups using a fairly classic interest-based negotiation (IBN) mediation model. Most agencies indicated they are using some form of assisted negotiation.
One of the surprising results of the surveys is the lack of face-to-face discussions or negotiations between the complainant and the health professional. These meetings seem to be extremely rare. The challenge of integrating interest-based processes into the system is compounded by the dearth of direct meetings between those filing complaints with the agencies and the pratitioners who have had the complaint filed against them.
Survey Implications for ADR Professionals
The survey highlighted some basic questions of interest to conflict resolution practitioners. These include:
Question One: Is there something antithetical in the role and function of a health care licensing body that makes participation in any form of ADR problematic?
Comments: While the descriptions vary, the dual role of these administrative organizations is often described as “protecting the public, and guiding the profession.” No one disputes the need for such agencies nor the validity of their mission. However, a clearly defined role resulting from their mission is one of discipline of the profession they are charged with overseeing. While some would see this enforcement role as a parallel to the role of the courts, the element of ‘self-regulation’ as well as the goal of ‘guiding the profession’ clearly demarcate the regulatory bodies as having a different essential function. The results of the survey, which show a fairly widespread if sometimes tentative use of ADR, may hold the answer to this dilemma. Certainly more research is needed in this area.
Question Two: Can healthcare regulatory agencies come to the table as a party with negotiable interests?
Comments: Only one of the 15 agencies responding participates as a party with distinct interests in an interest-based negotiation model. This is infrequent and is used only in certain circumstances. Two other agencies use a process where the agency is represented informally with the power to veto any agreement that seems to be “going off the rails” or varying from what they see is the correct resolution. It seems that the goal of ‘protecting the public’ can lead to processes which prevent direct participation by the parties, such as occurs in a mediation process. It will be instructive to look at other types of organizations with a statutory mandate to resolve disputes in the public domain, such as the Environmental Protection Agency, to see if there is a similar reluctance to enter into an interest-based ADR process with specifically defined interests.
Question Three: Is it still ADR if the originator of the complaint is excluded from the process?
Comments: It is extremely unusual for the licensing bodies to retain the complainant as an active participant in the process. Even those three that do so, do so infrequently. Some regulatory bodies use the analogy of the person who complains to the police. Following the complaint, the police investigate and dispose of the matter, usually with the assistance of a prosecutory body and finally the judicial system. Such a parallel seems a stretch but, if accepted, it raises the question of whether one organization can fulfill such diverse, multiple roles simultaneously- i.e. discipline and guiding the profession. Additionally, there is a question regarding the effect of the exclusion of probably the most interested party, the patient or complainant.
Some intriguing theoretical questions are raised by the survey of the use of ADR by medical and nursing licensing bodies in Canada. These questions remain unanswered but deserve further analysis and study.
A conflict resolution process is a change process. Parties may initially come to a mediation or negotiation to win or to get their way. They will likely be quite certain...By Tim Hicks
This article first appeared in the April 2005 issue of the Newsletter of the Mediation Committee of the Legal Practice Division of the International Bar Association (Vol 1, No 1),...By Eric van Ginkel