From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.
I recently conducted a Q & A via email with Richard J. Webb (pictured left) who writes the Healthcare Neutral Blog. Mr. Webb is a graduate of Yale University (B.A., cum laude, 1975) and the Duke University School of Law (J.D. 1978). His additional alternative dispute resolution training currently amounts to 177 hours of classroom time, including 60 hours of advanced mediation courses at the Straus Institute for Dispute Resolution at Pepperdine University in Malibu, California. He has received a peer review rating of AV from Martindale-Hubbell, and has been recognized as a New Jersey SuperLawyer in the field of healthcare law.
1. On your website, Healthcare Neutral ADR Blog, you state, “the effective use of ADR in healthcare disputes requires combined expertise in both the process of dispute resolution and the subject matter giving rise to the conflict.” Can you talk more about that?
Some would argue that ADR is primarily about process and communication skills, so that a neutral, particularly in mediation, need not know anything about the substantive issues underlying the dispute in question. In the healthcare field, I strongly disagree. (Note that I am referring here to disputes in which the healthcare context is important, and not to disputes that transcend the industry setting, e.g., a zoning dispute involving construction of a hospital’s parking garage.) The complexity of the legal and regulatory issues as well as the business landscape require the neutral to have subject matter expertise if evaluative techniques are to be used effectively. The credibility of the neutral with the parties also depends upon developing confidence in the neutral’s judgment, something that is difficult when the neutral can’t even speak the parties’ language. On the other hand, neutrals with health law expertise but no meaningful training or experience in ADR add little to what the parties and their counsel already have in the room. Remember, too, that efficiency is a major goal of ADR, one that is difficult to reach if the neutral requires on the job training in the process or the subject matter.
2. What was your inspiration for moving into the healthcare ADR field?
About ten years ago, having been in legal practice for twenty years, I became increasingly disenchanted with the traditional litigation process as the “standard” or “accepted” means of resolving conflicts. I began to study ADR developments and took some courses, and soon realized that my field of practice, healthcare law, was fertile ground for the use of ADR. While continuing my legal practice, I then charted a course of ADR training and experiential opportunities that culminated in forming Healthcare Neutral, LLC in 2007.
3. What have been your greatest challenges in the healthcare ADR field?
Healthcare ADR remains a relatively new field, and many of the parties in a position to utilize ADR have yet to embrace it. With the exception of some “mature” markets around the country, achieving engagement as a neutral requires not only convincing parties that you are a qualified neutral, but first getting them to understand why they should use ADR at all. This is the main reason I write my blog: to build awareness of the subject and my commitment to it. Of course, with that comes the challenge of time – there are only so many hours in the day.
4. Could you talk about the evolution of healthcare mediation over your 30 years of legal practice in the field?
I have noticed a few things. First, the use of ADR provisions in all types of agreements written in the field has gone from being an exception to the rule. Lawyers (myself included) 30 years ago looked suspiciously at ADR provisions because they threatened to take what we thought were clearly written contract provisions and turn them over to some unknown neutral, rather than allowing a judge to simply apply the law we all knew. Experience with some real judges’ decisions and the frustrations arising from the litigation process opened our minds. In this same period, the ADR movement grew to include a core of dedicated academics, trainers and practitioners who presented the notion of ADR as a real alternative to courtroom litigation. Having said this, there remains some distance to go before ADR is not only recognized in the drafting of agreements, but also truly embraced by the legal community. For example, the bulk of “healthcare mediation” today occurs in the form of post complaint settlement conferences. These are useful, but don’t reach the potential benefits that mediation can offer.
5. Is there a particular style of mediation, in your experience, that works best in healthcare?
I assume you refer to what’s often called facilitative v. evaluative v. transformative mediation. Any given case may call out for one of these techniques to be used primarily, but in general, I find that elements of all three have value in most mediations. The art is in when to employ them. In this regard, healthcare disputes are no different than any other.
6. How might the new Joint Commission standards, regarding a hospital Code of Conduct, impact ADR or mediation in healthcare?
A new Joint Commission standard targeting disruptive behavior went into effect last year. It requires all hospitals to have in place a code of conduct that will define the scope of acceptable behavior by all hospital personnel (including medical staff), and provide for a process by which unacceptable behavior will be addressed. A separate, new Joint Commission leadership standard requires hospital boards, medical staff and senior management to develop a process to manage conflict among these leadership groups and implement it when needed. Both initiatives effectively mandate an “alternative” dispute resolution process. This is a great development for healthcare ADR.
7. Are there instances in healthcare when you think mediation is not appropriate?
Very few disputes, in or outside of healthcare, would not benefit from mediation. One that comes to mind is a case in which one (or both) of the parties needs a judicial determination to establish a precedent, or some form of relief that the parties cannot create by agreement outside of a judicial forum. Fortunately, these are few and far between.
8. Can you speak to the trend toward “apology” in healthcare?
A number of healthcare institutions around the country have experimented with and adopted programs of claims management built on the idea that early identification of treatment errors, disclosure to patients, remediation of bad practices and appropriate apologies can substantially reduce the number and cost of malpractice claims. This coincides with a movement within the healthcare field, generally, towards internal “transparency” as an essential element of quality improvement. Implementation of “I’m sorry” programs require a significant commitment by several stakeholders, including hospital boards, management, doctors, nursing staff and insurers, but they hold great promise. Mediation and other ADR processes are crucial to the success of these programs.
9. What do you think the future holds for healthcare mediation?
I think the future is bright. It will take time, but the economics of healthcare will not sustain the present role of our courtroom litigation model. Furthermore, healthcare reform will create tremendous pressure for change in many aspects of healthcare delivery and payment. With that will come conflict, as the players seek to hold on to what they have and better position themselves for what lies ahead.
10. Are there internet healthcare mediation sources you can recommend?
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