Mediation and Arbitration in Healthcare

Mediation and Arbitration in Healthcare

In any set of circumstances that involves dealing with people, there are issues of agreement and disagreement. In many organizations, particularly those dealing with public and private healthcare, there are already a number of policies and procedures that outline most of the ways people need to act toward one another depending on their role (e.g. supervisory vs. employee, co-worker, etc.). However, since individuals differ in their ways of dealing with issues, reacting to one another, and in particularly in highly stressful situations like the medical field, there are times when formal policies are simply not enough to adequately handle each individual situation. When situations occur that are not solved adequately by policies and procedures, arbitration or mediation is usually called for, and a professional often brought in. Arbitration and mediation, though, are not the same, even though they have the same goal in mind.

Mediation of a dispute typically involves using a neutral third party to act in the role of a guide, a negotiator, or someone who might she differing viewpoints upon a situation. They may or may not be a member of the legal profession, but are required to hear both sides of the dispute, then meet with the parties, and focus on a mutually beneficial solution to the issue. Mediation is less formal than arbitration, and tries to ensure that parties "really want a solution" to the issues and will work to find said solution. Arbitration, however, usually requires a judge or attorney, and is similar to a court proceeding. Often, both sides must agree to the decision by the arbitrator to be binding, and typically, arbitration avoids lengthy trial proceedings. In arbitration, both sides state their position, witnesses may be called, and the arbitrator can probe both sides as appropriate (McLean and Williamson, 2008).

In many ways, the role of an arbitrator is similar to that of a judge in court. The arbitrator is to act in a fair and neutral way to help resolve a dispute by listening to the facts and arguments and make a decision. This is different than mediation -- in arbitration, the arbitrator is agreed upon by both parties and who is given the authority to decide the outcome of the issue. Court proceedings are held in public, typically arbitration in private a time and place more convenient to the parties under questions. Unlike the Court, the Arbitrator can use common sense, ethical and moral juidgement, or past behavior of the two sides to help guide a decision. There are some legal precedents to follow; but far fewer than in a formal court event (Compte and Jeheil, 1995).

There are a number of forms and methods of mediation/arbitration (Med-Arb). For some, it is a two-step opportunity, for others separate sequential processes, and still others as a synergistic problem solving tool -- if mediation does not work on problem X, then move to arbitration. However, a variation, called "co-med-arb, allows the mediator and the arbitrator to jointly conduct a fact-finding hearing at the outset of the dispute. The hearing is followed by mediation, then arbitrtation" (McLean and Williamson). For the purposes of this review, however, it is the synergy that the processes provide together that are important -- that the two standing alone are no where near as powerful a problem solving tool as they are when joined together.

Depsite what many believe about the process, there is no magic bullet and yet in Cecala v. Moore, the U.S. Court in Northern Illinoise said that "an agreement to mediate all dusputes [from] contract law was properly categorized as arbitration" -- yet arbitration and mediation may also be used interchangelably without too many procedural difficulties (McLean and Williamson). It is really up to the parties that enter into the process to decide if Med-Arb will be binding, and at what juncture. This is almost a perfect argument for the synergistic process that arises by using the two in tandem. No longer do parties need an agreement that requires the previous formalized process of first stepping through a mediation hearing, allowing that process to conclude, then moving on to arbitration. Instead, "med-arb agreements are different because they are intended to bring the dispute to an end, one way or another" (McLean and Williamson).