The following comments are personal observations gleaned from a number of interesting and challenging experiences with ADR in the Canadian healthcare system. The comments focus on some of the particular problems faced when applying dispute resolution (DR) principles and techniques in attempting to resolve healthcare conflicts.
The experience to date strongly suggests that there are a number of characteristics of the healthcare system, as well as the players in that system, which tend to generate “speed bumps” or special challenges that may not always be encountered routinely in other conflict situations.
Dispute Resolution Professionals
There are all the usual challenges that may arise in considering the dispute resolution professionals who enter the health care setting, such as inadequate skills or experience, problems with neutrality, and very frequently a significant mismatch between the DR practitioner’s preferred style (on the Rifkin grid) and the substance of the conflict. With regard to style, many healthcare practitioners feel most comfortable with an evaluative approach to problem-solving whereas the conflict they are submerged in requires a facilitative shading into transformative approach. This raises the still unsolved question of whether DR practitioners should, prior to an intervention, be sharing with parties (somewhat akin to an informed consent discussion) their preferred mediation style. This would decrease the likelihood of a mismatch or misunderstanding later in the process.
When the DR practitioner is also a healthcare practitioner there is a very real struggle with previous professional training and the tendency to want to “cure the world.” We identify with the conflict because we have been in the same situation ourselves or we have observed colleagues facing similar predicaments and have all sorts of wonderful solutions in our back pockets. On the other hand, DR practitioners who are not also involved in the healthcare field, must be prepared to grow several extra layers of skin in anticipation of imminent rejections by the health care practitioners such as, “Only an MD/RN/etc. can possibly understand our problems.”
The Healthcare Professionals
With the health care professionals, it is a situation of too much and too little knowledge. Whenever healthcare providers are directly involved as parties to a dispute there is the problem of too much knowledge. Many health care professionals have taken umpteen courses to help “save the world” and these frequently include DR/CM courses which make them think they are as expert as the person trying to mediate the dispute. On the other hand, some experienced clinicians and senior administrators have only a truncated understanding of the field of conflict management. Many are not familiar with the meaning of “mediation” or “interest-based processes.” Dispute resolution practitioners should pick and choose their descriptors carefully to avoid incorrect assumptions by the clinicians and administrators. In Canada, the term “mediation” is often associated (in the minds of hospital administrators at least) with nasty labour disputes requiring tense eleventh hour interventions. Thus, if you present as a mediator to someone with this experience or perception, expect to be treated as if you had the plague!
Adding Complexity: Health Care Cultures and Subcultures
It is easy to say, but hard to truly comprehend, that healthcare is a complex adaptive system, with many active players. Some of the players wear several different hats and each hat comes with a different “cultural” flavour. This mix of complexity and overlapping and competing loyalties and responsibilities seems to guarantee an interesting challenge at every turn in the road. There are several scenarios that surface within this complexity that affect the dispute resolution process.
As one simple example, we should recognize that in spite of the excellent work of the National Patient Safety Foundation Annenberg conferences on Patient Safety, the vast majority of healthcare practitioners still seem to be most comfortable participating actively in the “name-blame-shame” game when a less than optimal patient outcome has occurred. We can recognize the origins of these cultural influences in the hierarchical training programs that most practitioners must undergo. That does not make our lives easier in the midst of the mediation when “collaboration” seems like a bad word to many of the parties who have succeeded by being good competitors.
The Reluctant Physician Syndrome
Physicians play a central role in the delivery of healthcare services and for the most part still remain most comfortable as the “captain of the ship”. Subservience and privilege remain important prerogatives and the concept of team players is largely relegated to the field of professional sports. The “pedestal” syndrome is still very real and this makes for major challenges for the DR practitioner when one or more of the parties is a physician. This does not mean that nurses or other healthcare providers are not capable of adopting a hierarchical or overbearing approach to problem-solving but it happens much less frequently.
Unfortunately in many small and medium size facilities physicians can still largely function through power plays which create major road blocks to traditional mediation processes and collaborative problem-solving. Plain talking and multiple caucuses are sometimes successful in overcoming this problem but it is one about which the DR practitioner must remain vigilant.
The Reluctant Administration Syndrome
A major surprise arising from several recent DR/CM interventions is the almost universal experience of the extreme reluctance of administration and management to become directly involved in efforts to sort out a particular conflict. Management seems very comfortable seeing themselves as leaders, facilitators and problem solvers within the hospital. The DR practitioner will even feel comfortable assigning them the role of “convener” as the person or group responsible for starting the process (and of course paying the bills). But it is indeed rare to find an administrator who sees the hospital as a full-fledged party to the dispute, one who may have made major contributions to creating the problem and one who clearly has defined positions and of course underlying interests. These positions are traditionally defended outside of the DR process.
Even when the management group sees that they may have a role in the production and resolution of the conflict, they are often reluctant to send a representative to the table with the requisite authority that can lead to significant commitments. This “reluctant administration syndrome” has led to a revision of the classic teaching that I was exposed to in the basic and advanced courses during my initial training. There I learned that the mediator’s most powerful tool is often a good question. Now, I know that another important element to carry in your tool box is the conviction that mediation without all the significant parties present at the table is unlikely to succeed. This has led to more than one occasion when the management group has been given an ultimatum – “participate fully or we are unable to proceed with the mediation.” While this seemed blunt the first few times, it did effectively hold up to the administration a mirror which allowed them to examine carefully their role in the present problem.
The Invisible Patient Syndrome
Almost as striking as the reluctant administration syndrome is the invisible patient syndrome. Healthcare facilities that are comfortable involving patients in problem-solving efforts are as rare as hen’s teeth. Even though most hospital-based conflicts will have an impact on patient care and the delivery of services, it seems totally inconceivable to administrators or clinicians that patients should have any role in the resolution efforts. This extends to involving (or rather not involving) the patient representative on staff at the hospital.
While it is a lot more convenient to simply not bother patients and their families, while they are dealing with the consequences of serious illness, it is important that both DR practitioners and facility management understand the reasons why patients are so rarely involved in DR efforts. The profound inequality of knowledge and power that is the essence of the patient/provider relationship is reflected in the legal concept of the fiduciary or trust relationship. As a consequence of this concept, health care professionals often substitute themselves to represent the “best interests” of the patient. In Canada, in the past decade, the courts have shown much more interest in the fiduciary duty and the way in which it influences or determines the responsibilities of providers towards patients. The need to act in the best interests of the patient, at all times, has important implications for the process of conflict management.
While DR practitioners are used to dealing with “uneven tables” when helping disputing parties to resolve conflict, it is rare to find an entire field in which the inequality between parties is virtually institutionalized. It is a challenge for practitioners to be open and honest in front of someone who must trust you. As the patient safety movement has shown it is equally difficult for patients to ask the hard questions of those who can control important aspects of their future health and well-being. Imagine then how difficult it is for DR practitioners to navigate through this minefield of “obligatory trust and institutionalized inequality” between parties. And, finally try to imagine how difficult it is to arrive at a fair, wise and durable solution when one party (patients and their families) are almost always prevented from sitting at the table.
When the Parties Become Patients
When the DR practitioner is also a healthcare provider there is an overwhelming tendency to want to apply our “healing” skills to the mediation process. Speaking from practical experience, I know that it is extremely difficult to resist the temptation to understand the behaviour and positions of a particular party as arising from depression or anxiety and then seeing the solution to the conflict as one requiring “treatment” of that party/patient rather than searching for options that might satisfy some or most of the interests of all the parties.
The other aspect of this problem is well summarized by the excellent work of Albert Wu and his recognition of the healthcare provider as the “second victim” in the event of bad clinical outcomes – a victim that is all too comfortable in self-recrimination and guilt. This makes for a very challenging mediation arena where surfacing the interests can be quite contradictory for the parties.
The Latest Buzzwords and the Last Word
I would like to provide one final reflection on the special nature of healthcare and how it can complicate the DR process. Over the past 10-15 years a movement has grown in healthcare towards basing treatment on “evidence-based medicine” (EBM). This has led to the development of literally thousands of clinical practice guidelines (CPG’s) to assist healthcare providers in providing the most appropriate scientifically supported care. Removing variation from practice makes a lot of sense on one level but leaves little or no room for an anecdotal, (read: story-telling), approach to the world of health and illness. The emphasis on EBM and the reliance on CPG’s seems to leave little room for “brainstorming” and collaborative “option generation.” While the approach favoured by interest-based DR practitioners seems both rational and effective to us, it may seem almost antithetical to the promoters of the latest movement in modern medicine. This may also explain some of the resistance to DR/CM processes. What may seem like curmudgeonly behaviour and attitudes to us may feel entirely rational and scientific to healthcare providers.
I have tried to reflect on my own recent experiences as a healthcare mediator in Canada, and in particular the difficulties which seem to arise during efforts to help resolve conflict within a range of hospital-based situations. The potential “speed bumps” that I have noted are not insurmountable obstacles but seem to be relatively common problems that arise largely as a result of the characteristics and culture of the healthcare system. Awareness of these influences can only be positive for DR practitioners who venture into healthcare conflict situations.
At the recent ABA Section on Dispute Resolution spring meeting, I attended one program whose title promised an answer to the fascinating question “What Do Litigators Want?” when it comes...By Diane J. Levin