By Holly Hayes The American College of Healthcare Executives (ACHE) held their annual national meeting in Chicago the week of March 22, 2010. During the meeting, Joseph Bujak, a physician and vice president of medical affairs at 246-bed Kootenai Medical Center, in Coeur D’Alene, Idaho and co-presenter Kathleen Bartholomew, a registered nurse and well-known author on nursing, acted out a unique role-playing presentation on doctor-nurse communication. See the full article here (free registration required). “In the opening skit Bartholomew phones Bujak, the on-call physician, at home in the early morning hours to ask whether she should adjust treatment in response to changing creatinine levels in a kidney failure patient. The physician berates the nurse for waking him, because she’s the fourth person to do so and because she doesn’t seem to even understand the clinical difference between rising and falling creatinine levels. ‘I’m surrounded by incompetents!’ Bujak says. ‘You’d have to be a Neanderthal to think I would put up with this abuse,’ Bartholomew tells the audience.” Both presenters agreed, one of the main reasons for physician-nurse communication problems was that doctors often don’t know the nurses. In our series on using mediation skills in the health care setting, we used an example of physician-nurse communication problems in Part I, where we highlighted the use of the principled negotiation method to resolve conflict. One of the key points in this method is separating the people from the problem as seen in Part II. In their book, Getting to YES, Roger Fisher and William Ury outline three categories to think about in terms of dealing with people: perceptions, emotions and communication. 1. Perceptions: In the doctor-nurse situation described above, the conflict exists because it exists in each side’s perceptions. If the nurse or the physician can put themselves in the other’s shoes, it allows them to gain useful information to help address the overriding patient care issues. 2. Emotions: When parties recognize and understand emotions, both theirs and the other persons, they are freed from the burden of unexpressed emotion and can more likely work on the problem. During the skit, it was stated, “nurses see doctors as being able to flout the rules, which destroys the sense of collegiality on which the new team-centered approach to healthcare relies.” If physician and nurse had better communication, the emotion around this issue could be recognized and addressed. 3. Communication: Skills that can be learned to improve communication include: listen actively and acknowledge what is said, speak to be understood, use “I” rather than “you”, and speak with a purpose in mind and communicate what purpose the information will serve. For more on using mediation techniques in healthcare, see our Part III, Part IV and Part V. Let us know if you have had any experience with disruptive healthcare providers and how it was addressed. 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.

By Holly Hayes Readers have asked us, “where does ADR fit in health care? It’s a good question and one we have contemplated ourselves. To learn more, we are undertaking an informal survey asking leaders in the field to share their thoughts and experiences on this topic. So far, we have learned that ADR techniques can be applied with the following groups: Physician Practices and Hospitals: As more and more physicians move out of private practice and into salaried positions with hospitals, alternative dispute resolution can help both groups reach agreement on the business model that will work best for them. A recent article from the New York Times, titled, “More Doctors Giving Up Private Practices” states, “As recently as 2005, more than two-thirds of medical practices were physician-owned –a share that had been relatively constant for many years, the Medical Group Management Association says. But within three years, that share dropped below 50 percent, and analysts say the slide has continued.” Physician and Physician: We posted about Dr. Howard Brody’s recommendation (post available here) that physicians take an active role in determining the most effective use of medical procedures to help decrease health care costs. This article from the New York Times, “Law May Do Little to Help Curb Unnecessary Care” states, “To truly change the national chronic overuse of medical care, there will have to be a substantial change in the way patients think about health care, how medicine is practiced and how it is paid for, economists and doctors say.” We believe conflict resolution techniques can greatly benefit this on-going discussion of appropriate medical care. Physician and Hospital: We have written about disruptive physician behavior here and how mediation can be helpful. Staff Member and Manager: The Joint Commission now requires that hospitals develop conflict management systems. See more here. As we learn more about conflict resolution in health care, we will post responses here. This list is not intended to be comprehensive and we welcome your comments. 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 International Chamber of Commerce (ICC) released recently a new checklist to guide arbitrators writing awards. Here is the press release: New aid for drafting awards in ICC cases February 2010 As part of its ongoing drive to improve efficiency, the ICC International Court of Arbitration has issued a checklist for drafting ICC arbitral awards. The two-page document may be a helpful memory jog for ICC arbitrators when preparing their awards for submission to the Court. The checklist reminds arbitrators of key information that must normally be included in an ICC award. These include the correct and full identification of all players in the arbitration, details about the relevant arbitration agreement, the complete history of the proceedings, any decisions on jurisdiction, the disposal of the parties’ claims and, in final awards, the costs of the arbitration. Such information is necessary, not only to resolve the dispute, but also to demonstrate the integrity of the proceedings in the event of a subsequent attempt to set aside the award. The checklist also draws attention to matters of presentation, stressing the importance of clarity and consistency. The readability of an award will be greatly enhanced if it is carefully structured, includes a table of contents and numbered pages and paragraphs, and provides translations of any texts quoted in foreign languages. The checklist is for guidance only. It does not seek to be exhaustive, nor is it mandatory or otherwise binding upon arbitrators. Simon Greenberg, Deputy Secretary General of the Court, described the checklist as ‘a time-saving tool to help avoid many of the formal corrections requested by the Court when scrutinizing awards under Article 27 of the ICC Rules’. Mr Greenberg added: ‘It will help to make sure that busy arbitrators do not overlook details that can improve the effectiveness of their awards and thereby contribute to the quality of ICC awards and the efficiency of the scrutiny process.’ The scrutiny of draft awards is one of the most appreciated added values of arbitration proceedings administered by the ICC Court. In 2009, only 33 of the 415 draft awards approved by the Court were accepted without comment. In the remaining 382, the arbitral tribunal was invited to look again at certain aspects of its award. It is hoped that the new checklist will render much post-scrutiny adjustment on minor formal matters unnecessary. The checklist is intended solely for ICC arbitrations and will be distributed systematically to arbitrators when the case file is transmitted to them, as well as to all arbitrators in ongoing proceedings that have already passed that stage. It will also be published in the ICC International Court of Arbitration Bulletin and the ICC Dispute Resolution Library. Technorati Tags: ADR, law, arbitration

As the U.S. Supreme Court prepares to decide Rent-A-Center v. Jackson, we thought that you might find interesting to read the following blog posts and articles relating to the issue of arbitration unconscionability: Who gets to Decide Unconscionability?, Andrea Schneider, ADR Prof Blog (March 4, 2010) Thankful for Unanswered Prayers? Unconscionability Equilibrium, Don Philbin, Alternative Resolutions Newsletter, page 30 (Winter 2010) Unconscionability and Arbitration, Steven K. Huber, Alternative Resolutions Newsletter, page 36 (Winter 2010) Prawfsblawg: Allocating Power Between Courts and Arbitrators – and Why Scholars of Federal Courts Should Care, Disputing (Feb. 23, 2010) Letting the Arbitrator Decide Unconscionability, Andrea Schneider, ADR Prof Blog (includes link to paper by Karen Halvenson Cross) (Feb. 20, 2010) Arbitration and Class Action, Eugene Volokh, The Volokh Conspiracy (Feb. 2, 2010) Supreme Court Agrees to Hear Arbitration Unconscionability Case (Jan. 18, 2010) Ninth Circuit Has Interesting Ruling on Unconscionability, Sarah Cole, ADR Prof Blog (Sept. 15, 2009) Ninth Circuit Finds Class Action Waiver Unconscionable, Disputing (March 31, 2009) Unconscionable Arbitration Agreement: A First for Texas, Disputing (Feb. 2, 2009) Technorati Tags: law, ADR, arbitration