By Holly Hayes Those of us in the mediation field have likely read The Power of a Positive No by William Ury. I was reminded of this book when I read the New York Times article this week, “In Medicine, the Power of No.” See the full article here. William Ury’s preface begins with a discussion of his daughter’s illness and his family’s “long journey through the medical system.” He says, “I realize the process has called on all of the skills I have learned over the years in helping others get to Yes with their negotiation issues. I also realized that, for me personally, the key skill I needed to develop to protect my daughter and our family was saying No.” Everyone says no, the difference for Ury was that “my Nos needed to be nice.” As you might have guessed, David Leonhardt in the New York Times asks, “How can we learn to say no?” The article outlines a three-step process about learning to say no in medicine, more often: The first is learning more about when treatments work and when they don’t. ‘All too often,’ the Institute of Medicine reports, the data is ‘incomplete or unavailable.’ As a result, more than half of treatments lack clear evidence of effectiveness, the institute found. It says the most promising areas for research include prostate cancer, inflammatory diseases, back pain, hyperactivity, and CT scans vs. M.R.I.’s for cancer diagnosis. As part of the health act, a Patient Centered Health Research group will have an annual budget of $600 million. Relative to total health spending, that’s a paltry sum. But it’s real money relative to what’s now being spent on such research. The second step — and maybe the most underappreciated one — is to give patients the available facts about treatments. Amazingly, this often does not happen. ‘People are pretty woefully undereducated about fateful medical decisions,’ says Dr. Michael Barry of the Massachusetts General Hospital, an advocate for sharing more with patients. When patients are given information about potential benefits and risks, they seem to choose less invasive care, on average, than doctors do, according to early studies. Some of them choose home care like https://homecareassistance.com/la-jolla/. Some people, of course, decide that aggressive care is right for them — like the cancer patient (and palliative care doctor) profiled in this newspaper a few days ago. They are willing to accept the risks and side effects that come with treatment. Many people, however, go the other way once they understand the trade-offs. The health act requires Medicare and other agencies to help hospitals and doctors give patients more information — which is practically a no-lose proposition. In the course of receiving more control and more choice, two distinctly American values, patients will probably help hold down costs. The final step is the bluntest. It involves changing the economics of medicine, to reward better care rather than simply more care. Health reform doesn’t go nearly far enough on this score, but it is a start. The tax subsidies for health insurance will shrink, which should help people realize medical care is not free. And doctors who provide good, less expensive care won’t be financially punished as often as they now are. None of these steps will allow us to avoid the wrenching debates that are an inevitable part of health policy. Eventually, we may well have to decide against paying for expensive treatments with only modest benefits. But given how difficult that would be for this country, it makes sense to start with the easier situations — the ones in which ‘no’ really is the best answer for patients. Space will only allow a summary of William Ury’s wise words on this topic. He outlines, “The Three Great Gifts of a Positive No”: According to the sages of ancient India, there are three fundamental processes at work in the universe: creation, preservation, and transformation. Saying No is essential to all three processes. If you can learn to say No skillfully and wisely, you can create what you want, protect what you value, and change what doesn’t work. These are the three great gifts of a Positive No. We welcome your comments on this topic. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.

The ABA Section of Dispute Resolution announced the 2010 winners of its First Annual Mediation Video Contest on YOUTUBE. An Honorable Mention Winner was “Mediation Works” submitted by: Peggy Foley Jones, Lissy Gulick, Pat Bambrick, Tod Davies. Check it out: Technorati Tags: ADR, law, arbitration

By Holly Hayes The Joint Commission Medical Staff Standard MS.01.01.01 has been approved and will go into effect March 31, 2011. See the Standard here. American Medical News summarizes: “The new standard states that the organized medical staff has the primary job of assuring quality and patient safety in the hospital while laying out a mechanism for physicians, the hospital governing body and chief executive to resolve differences over rules, policies and procedures. By spelling out these respective roles and responsibilities, the standard aims to foster collaborative working relationships to improve the quality of care. Medical staffs around the country will have to revise their bylaws in the next year to comply with the standard.” Read more here. With regard to the management of conflict, The Joint Commission introduction to the new standard states: “If conflict arises within the medical staff regarding medical staff bylaws, rules and regulations, or policies, it implements its process for managing internal conflict (see Element of Performance 10 — see below). If conflicts regarding the medical staff bylaws, rules and regulations, or policies arise between the governing body and the organized medical staff, the organization implements its conflict management processes, as set forth in the Leadership chapter.” Element of Performance 10 states: “The organized medical staff has a process which is implemented to manage conflict between the medical staff and the medical executive committee on issues including, but not limited to, proposals to adopt a rule, regulation, or policy or an amendment thereto. Nothing in the foregoing is intended to prevent medical staff members from communicating with the governing body on a rule, regulation, or policy adopted by the organized medical staff or the medical executive committee. The governing body determines the method of communication.” The Joint Commission recognition of the value of teamwork in the medical setting and the mandate for the development of a conflict resolution process is summarized as follows: “This collaborative relationship is critical to providing safe, high quality care in the hospital. While the governing body is ultimately responsible for the quality and safety of care at the hospital, the governing body, medical staff, and administration collaborate to provide safe, quality care. (Please see the Leadership chapter for more discussion of the relationship among the organized medical staff, administration, and governing body.)” See our posts on the Leadership chapter here and here. The requirement that “The organized medical staff has a process which is implemented to manage conflict…” validates the use of ADR techniques in health care. We welcome your comments to this new medical staff standard. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.

The University of Texas, along with the Permanent Court of Arbitration and the Houston International Arbitration Club, will be sponsoring a symposium in Houston on May 13-14 on the subject, “Arbitrators and National Courts: Conflict and Cooperation.” The program will cover issues concerning the relationship between arbitrators and courts—such as the determination of arbitral jurisdiction, injunctions in favor of (or against) arbitration, arbitrators and the rule of law, and the “second look” doctrine a quarter-century after Mitsubishi; the speakers include Professors Andrea Bjorkland, David Caron, Michael Reisman, and Alan Rau; from Europe, such prominent international arbitration figures as Pierre Mayer, Gabrielle Kauffmann-Kohler, Loukas Mistelis, Laurie Craig, Dominique Hascher and Lord Hoffmann; and a number of American and foreign international arbitration practitioners. The full program can be found here. Technorati Tags: arbitration, ADR, law