Disputes over the delivery of medical care creates stress for the patient and the doctor.

Patients and their families want to know “why” and “how” an event occurred. Patients and families want information. Many want to hear an apology or other acknowledgement of their loss.

Most physicians are given little or no training for handling disputes with patients. If anything, they have been advised that saying too much can lead to litigation. Many have been warned that an apology can be perceived as an acceptance of responsibility and liability. With that advice, most are reluctant to disclose any information as it might be used against them.

And litigation is often the outcome of medical disputes. Litigation creates additional stress for the patient, the family, and the medical professional. The dispute becomes adversarial with the parties taking positions and assembling evidence to support their grievances. While it is true that in most medical court cases, judges and juries decide in favor of the medical professional, the time invested in the dispute is months and most often years. Throughout, patients and their families continue to deal with the unresolved stress. And medical professionals also experience stress as well as lost time, costs and risk compromising their reputation.

When medical disputes were handled by mediation:
In the first, co-mediators were used—one mediator, an attorney who typically represented patients, and the other an attorney who typically represented doctors and hospitals in medical liability cases. If the first five years of the program 80% of the cases were resolved within three to four hours. While payouts were lower, patients were willing to accept the outcomes because of their timeliness.

A second program was set up to facilitate settlements that went beyond financial outcomes to allow the doctors, patients and their families to consider non-monetary solutions, such as apologies and revisions to practices that might avert future errors.

While mediation of medical disputes has the advantages of reduced costs, time and improved patient-physician relationships, there are barriers to wider use. Payments made on behalf of physicians as a result of mediation must be reported to the U.S. Department of Health & Human Services’ National Practitioner Data Bank. This requirement, of course, negates the traditional confidentiality of mediation. As litigation favors the physician there is strong motivation to litigate.

Nonetheless, medical disputes are certainly an area where expanded use of mediation would benefit all parties.

Over the years I’ve listened to several people tell me why they will never mediate disputes.

 Once a prominent and wealthy business owner refused to mediate any dispute or litigation. He tells me that mediation is for “weaklings” and, by implication, he is not weak. He says agreeing to mediate is simply a message that his case isn’t strong. He would rather spend months and years and any amount of money pursuing litigation in an attempt to win. If he is forced into court referred mediation, he complies, but refuses to settle. His strategy of simply outlasting and outspending most adversaries, he believes, is usually successful. He contends, if an adversary continues the dispute, they are usually able to get a settlement “on the courthouse steps.” He tells me he doesn’t see much use for mediators. What is his logic? I think it is his estimation of his own power and resources.

One attorney strongly advises his client not to mediate. If pressed he will argue that he would only recommend mediation if he can get the “right mediator” and by that he means a mediator who he believes is predisposed to view the dispute in his way. I would guess that mediators he used in the past would be most upset to hear his words since neutrality and impartiality are the fundamental ethical standards for mediation. His statement, like the business owner’s, shows ignorance and disrespect for the process. Rather than mediate, he advises his clients to support his lengthy and expensive negotiation with adversaries and, if not successful, uses that as evidence that mediation would not have been successful and litigation is now the only option. What is this attorney’s logic? Again, I believe it is his estimation of his own competence and his client’s resources.

Both the business owner and attorney in these two examples are fine with spending dollars and time to exercise their power at the expense of rebuilding a relationship with their adversaries. Both don’t acknowledge there is significant cost in destroying a relationship and a loss of synergetic power than can come from rebuilding one instead. Both find it more important to demonstrate power and attempt to win the immediate battle.