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Negotiating The New Health Care Minefields

A little over a year ago, I was boarding a flight from New Orleans to Dallas/Fort Worth. Sometimes I’m a claustrophobe on airplanes, so my window seat started to feel like a trap when a married couple began to take two adjacent seats. “Tessie,” the wife got into her seat; but her husband “Bill,” who looked like he was held together by the medical equivalent of baling wire, couldn’t manage to sit. It was obvious he was in serious pain; there was no way he’d be able to get into a tourist-class seat.

Occasionally, you have to negotiate from a seemingly powerless position. Here I was, a lowly airline passenger on a short flight. But I derived power because there was nothing to lose and everything to gain. It was in Bill’s interest to be able to sit in a roomier, more comfortable seat. Tessie’s interest was to see her husband’s misery eased. And I was able to figure out that the flight attendant had an interest as well: unless she could get the man into a seat, the plane could not take off. It took a little work, but I was able to convince the flight attendant to move Bill into the only empty seat in first class. As it was, however, the unfortunate man passed out during the flight due to the agony he was suffering. His wife explained that her husband had just been released from the hospital after major back surgery. Perhaps she was too gentle; in some people’s minds the phrase might have been, “kicked out as a consequence of managed care.”

Interest-Based Negotiation and Healthcare Delivery.

In the world of health care delivery, we are faced with an expanded and changing lineup of stakeholders. They compel us to ask, “Who is managing what for whom?” “How many of the various interests are being properly represented?” Because I teach interest-based negotiation skills, I have been particularly fascinated by how focusing on interests can be crucial to the success of health care delivery in many settings in both the United States and the United Kingdom.

Changing Interests in the British and American Systems.

American professionals are currently engaged in a vast variety of pre-emptive strikes aimed at gaining control of the management of before government mandates more threatening changes. The British National Health Service has often been thought of as the nightmare of the U.S. establishment, which is deeply threatened by the idea of central government dictating delivery – and any profits that may result. Thus, it is instructive that the current reform of the British system is less in the area of care delivery and more focused on the administration of the system itself.

Interestingly, while consolidation in its many forms is a major trend in the U.S., in Britain, the NHS has been ‘marketised’ – turned into a multiplicity of more or less independent operating units. The British taxpayer still supplies the funds for virtually all delivery, but hospitals, ambulance services, and other providers now have to compete regionally for these taxpayer-based funds. executives in the United Kingdom who are accustomed to managing their annual budgetary entitlement now must negotiate with the staff of regional commissions for operating funds. In addition, these same executives have to negotiate with a new “tribe” for annual funding. General practices that have worked out capitation arrangements with the regional funding commissions are now called by a rather revealing name: GP fundholders.


GP Fundholders are emerging as crucial gatekeepers, not only in the delivery of health care services to their patients, but also in the delivery of funds to hospitals and other providers. Because their power derives from their possession of a budget based on a capitated patient population, GP Fundholders can be viewed as a parallel to American managed care mechanisms.

The changes in American and British delivery management mean there is a plethora of fund and gatekeepers. Hospital chief financial officiers have long been compelled to negotiate with people acting in the role of insurance adjusters. Now in some systems in the United States, care management is in the hands of professionals referred to as population managers. The gatekeepers in decision-making go by a multitude of different names, and the number and power of stakeholders is increasing.

Resolving Conflicts

As a result, hospitals buy medical practices, other hospitals, and the services of management consultants. Where once there were many corporate cultures, now, somehow, everyone is supposed to find a way to get along. The “normal” conflicts about medical ethics, patient advocacy, and budget decisions haven’t gone away; we’re just trying to reinvent the rest of the wheel on a national level in the United Kingdom or in their local or regional market in the United States.

What are we doing if the old issues have not gone away? It is a universe of entitlements – patients consider themselves entitled to excellent care, professionals feel entitled to rewards for their years of preparation, and executives feel entitled to a little respect.

According to the Rolling Stones, “You can’t always get what you want.” Now the question becomes, How many of the stakeholders can get what they need? delivery is becoming more business-like in both the United Kingdom and the United States. If the sector is indeed to operate like a successful business, all stakeholders must be prepared to negotiate.

Pillars of Negotiational Wisdom

Negotiating is an art practiced by virtually everyone; it is a craft practiced by few. There are many techniques to making negotiation work. If you pay careful attention to the following factors, which I call the Eight Pillars of Negotiational Wisdom, you should find that negotiating with all the stakeholders clamoring for your attention will yield more efficiency, less stress, and greater long-term success.

Be conscious of the difference between positions and interests. A doctor who has all the answers, who takes it personally if his or her judgment is questioned, can be a very difficult person with whom it negotiate. If you can figure out why you want something – and why others want what they do – then you are looking at interests. Interests are the building blocks of agreements that last.

Be Creative. Anyone can do things the same old way; but using brainstorming techniques, listening to outlandish proposals and opening up to unanticipated possibilities expands the opportunities for agreement. If you respond with new ideas, if you do the unexpected, you can open doors to far greater gains than when you behave predictably. This is particularly true in a time when the delivery of is being re-examined and reinvented. is becoming more business-like, and business makes progress when people act as entrepreneurs. Entrepreneurs are not always right. They do not always get rich. But their contribution to the overall sum of knowledge contributes to progress. Creativity can make everyone look good and, with all those stakeholders looking over your shoulder, that can make a big difference.

Be fair. If people feel a process is fair, they are more likely to make real commitments. They’re not going to walk away grumbling after the negotiation is completed, planning to find ways to wriggle out of an agreement. Sometimes things are helped when a neutral, external authority is used to measure fairness: a dictionary definition, a lab test, an academic article.

Fairness means involving all the parties. They should be involved not necessarily as equals – if my doctor tells me my medical is as good as his or hers, it makes me rather nervous. But they should be involved at least as people to be taken seriously. A tendon problem once led my orthopedist to prescribe a bunch of time-consuming exercises and icing. By involving me, he increased my confidence in the process and it helped speed up my healing.

Be prepared to commit. You cannot make a commitment unless you can fulfill it. And your commitment isn’t worth much unless the parties to the negotiation are drop-dead decision makers. Moreover, commitment is not likely to result unless the parties all feel that the process has been fair. My orthopedist’s demands for my active participation in the healing process required me to make a decision whether to commit myself. Of course, it can be a challenge when traveling to ask hotel bartenders to give me bags of ice cubes to take up to my room – especially without an accompanying drink. But my doctor got me to make a commitment, and he and I honored the agreement we had reached.

Be an active listener. Communication takes place when information passes from a source to a receiver. If you spend all of your listening time planning how you’re going to “zing” the other party when they finally stop talking, you’re not hearing them – and they know it. haven’t heard them. Focus on what others are saying, both their words and the underlying meanings. It will help you understand the interests upon which agreement can be based. When your response makes it clear that you’ve really been listening, and after the other party gets over the initial shock, they may also be more prepared to listen to you. Active listening can change the rules of the game and raise the level of civility in the negotiation.

It is easy for a nurse to hear the same thing time and again from different patients. Make the right gestures, roll the eyes at the appropriate time and perhaps you can get away without having to change the routine. However, the extra effort involved in really listening may yield bits of information that can improve the outcome. Is the patient demanding more attention because they are really ill, or because they don’t want to go home to an abusive family? Is someone’s difficulty understanding simply a cultural problem, or does it indicate an undiagnosed condition? Is a doctor’s attitude a display of ego, of insecurity, or is it designed to increase a family’s confidence?

Be conscious of the importance of the relationship. Most of your negotiation is with “repeaters,” people you run across time after time. Your spouse and kids are people with whom you will probably always negotiate. The same is true for service chiefs, third-party players, and representatives of affiliated institutions. If you understand the relative priority of the relationship, it can be easier to know when surrendering a particular point may yield short term costs, yet yield long term gains. In some situations, the management style is a matter of “divide and conquer”: many seemingly successful executives use an iron fist encased in a velvet glove. Yet the hospital CEO I know who inspires the most loyalty from his staff wears a badge identifying his position as “customer service representative.”

Be aware of BATNAs. BATNA stands for the Best Alternative To a Negotiated Agreement. Your BATNA is the situation you want to improve by negotiating with a given party or set of parties. If you can improve things on your own, you don’t need to negotiate with them. Your BATNA is not your bottom line, it is a measure of the relative value of negotiating a particular issue with a particular party – or whether you can fall back on better alternatives. As the world of delivery becomes less uniform, the number of BATNAs available to different parties increases: patients can choose different practitioners, doctors acting as gatekeepers may have several choices of consultants to which to send patients, the people who make financial decisions can foster competition for scarce resources.

It is also important to view the BATNA as a measure of a balance of power among the parties. If you have a strong BATNA – if they need you more than you need them – the balance of power is in your favor. You may find that you perceive your BATNA as weaker than the other party’s. If so, before you enter into negotiation you should do as much as you can to strengthen your BATNA and weaken theirs, bringing the power balance to a more favorable level.

Be Prepared. In order to negotiate effectively, efficiently, and wisely, it is crucial to prepare. Your job is not to outline a perfect, total solution; that would be a positional approach. Preparation means studying the interests and BATNAs of every possible party. It means understanding the short and the long term consequences you use and the substantive results you pursue. Doing your homework can save a lot of time.

Enhancing Negotiation Skills

Enhancing your negotiating skills is an important element of personal development. Helping your colleagues and staff to negotiate better will save time, reduce stress, and increase productivity. The growing number of entitled-feeling stakeholders means that successfully negotiating the minefields in the system can be crucial for your own health.

As you consider the brief lessons contained herein, it makes sense to remember the old story about the tourist in New York City. She asked a passerby, “How do I get to Carnegie Hall?” The response was very simple: “Practice. Practice. Practice.”


Steven P. Cohen

Steven P. Cohen, President of The Negotiation Skills Company in Pride's Crossing, MA is a graduate of Columbia Law School and Brandeis University. Mr. Cohen received formal training in Negotiation, Advanced Negotiation, and Mediation at Harvard Law School where he was appointed a member of the Alumni Advisory Board of… MORE >

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