By Holly Hayes Conflict in health care differs from conflict in other arenas because it can result in significant negative outcomes – in some cases, life or death. Part IV in our series on applying conflict resolution skills in the health care setting follows the Principled Negotiation techniques described by Roger Fisher and William Ury in Getting to Yes with a focus on “inventing options for mutual gain”. Part I in the series can be viewed (here), Part II, (here) and Part III (here). Why do we want to take the time to invent options when we disagree? Often conflict appears to have only one solution – split the pie in half — and people usually believe they know the correct answer – their answer is the right answer. Four major obstacles typically inhibit the invention of more than one option for consideration in a negotiation: Premature judgment Searching for a single answer The assumption of a fixed pie Thinking that solving the problem is “the other party’s problem” We can imagine a typical health care conflict between the Emergency Department (ED) Manager and the Manager of Environmental Services (Housekeeping) in a hospital could look like this: Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. I need your staff to take over all of the cleaning in the department. We have to take care of the sickest, most urgent patients in the hospital. Manager of Environmental Services: Well, I understand you are busy, but my department hasn’t added any new staff, why do you think we could pick up the slack for your staff? ED Manager: Well, let’s just split the jobs then, you do half of the work and we will do our best to do the other half of the cleaning. Manager of Environmental Services: I guess we can try to make that work. The managers did not “expand the pie” before dividing it – they did not invent options for mutual gain before reaching a solution. Let’s look at some other approaches where the managers take the time to invent creative options: Separate the act of developing options from the act of judging the options – brainstorming is a fairly common exercise where parties produce as many ideas as possible without considering their merit until a complete list is made. Broaden the options rather than looking for a single answer – one example of this is to invent options of different strengths, some weaker options, some stronger options for consideration; another example is to look through the eyes of someone else, for example, look at the problem through the eyes of the patient or a family member, what options would they suggest? Search for options that present opportunity for mutual gain – the secret here is to look for joint gain rather than a winner and a loser by identifying shared interests or dovetailing differing interests. Invent ways to make decisions easy for the other party – a painless choice for the other side that advances your interests is a win-win for both parties. Let’s try the conversation with the two department managers applying the techniques above. Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. We have to take care of the sickest, most urgent patients in the hospital. What do you suggest? Manager of Environmental Services: That is a problem. I wonder if our departments could split the cost of a temporary staff member to help in the short-term? Emergency Department (ED) Manager: That’s a thought. What if we spent some time streamlining the cleaning process to make the best use of the staff’s time. Your department must have a lot of ideas you could share with us. Manager of Environmental Services: We do have some ideas that have worked in other departments that could be applied here as well. Let’s form a group of your staff and my staff to look at how we can work together to solve the problem. By working together, the two managers invented options that will likely result in even more options for consideration that will benefit the departments, the hospital and ultimately the patients. The key is taking time to explore those options for mutual gain that advance the interests of both parties. We welcome your comments and invite you to share other examples of conflict in health care. Technorati Tags: Healthcare, ADR 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 United States Court of Appeals for the Fifth Circuit held that a NASD arbitration panel did not exceed its authority when awarded attorney’s fees directly to counsel. In Institutional Capital Management, Inc. v. Claus, No. 08-20710 (5th Cir. Feb. 11, 2010), Leonard Claus and Institutional Capital management (ICM) entered into an agreement to buy and sell bonds. After a dispute over some bonds that Claus originally purchased to sell to Sterling Financial Investment Group, Inc. (Sterling) Claus sued ICM alleging negligence, gross negligence, negligent representation, breach of contract, violations of federal and state securities laws, and violations of federal and state statutory fraud. Claus hired Michael Fallick to represent him on a contingency fee basis. An arbitration panel at the National Association of Securities Dealers (NASD) awarded Claus $25,000 in compensatory damages and $70,000 in attorney’s fees directly to Fallick. The panel also charged Claus $22,000 in arbitration fees. Thus, the net award to Claus was for $3,000. Sterling and ICM moved to vacate the arbitration award and a magistrate judge agreed because “the arbitration panel exceeded its authority when it awarded attorney’s fees directly to Fallick in violation of Texas law.” The Fifth Circuit first highlighted the Federal Arbitration Act (FAA) grounds to vacate an award. However, the court noted that there is no need to consider whether the alleged legal error violates the FAA, because there is no reversible error in this case. The court explained that Texas law prohibits the award of fees to be paid directly to counsel unless authorized by statute. But it noted that a party that has been ordered to pay attorney’s fees has no standing to challenge to whom those fees are paid to. The court also addressed appellees’ argument that the fee award was unreasonable. It stated that “[a] disproportionate fee award is not tantamount to an excessive attorney’s fee award under Texas law.” Accordingly, the court reversed the judgment of the magistrate judge and reinstated the arbitral award. Technorati Tags: ADR, law, arbitration

Professor Mitchell H. Rubinstein at the Adjunct Law Prof discussed last week this mediation confidentiality case: Anthony v. Andrews, 2009 WL 4547605 (Ohio Ct. App. Dec. 4, 2009), is an interesting mediation case. Rebecca Anthony sued Dr. Annette Andrews in state court alleging medical malpractice. During a court-ordered mediation, Andrew’s counsel informed the mediator that Andrews would not give her consent to settle the matter and had never given consent to do so. The mediator included these statements in his mediation report. Upon viewing the report, the trial court concluded that Andrew’s counsel had failed to negotiate in good faith during the mediation. The trial court sanctioned Andrews in the amount of Anthony’s attorneys fees, lost income, and expenses in attending the session. Andrews appealed to the Court of Appeals of Ohio. The Court reversed. The Court held that the statements regarding Andrew’s consent were statutorily privileged from disclosure as mediation communications and failed to meet any exceptions to the privilege as permitted by statute. The Court rejected Anthony’s argument that no privilege should apply since no mediation took place because Andrew’s counsel lacked settlement authority, explaining that the statute nonetheless considers certain statements made pursuant to mediation as mediation communications. This was not a labor case which is governed by federal law. Also, most states do not have mediation privilege statutes. We would like to hear how other jurisdictions handle the issue of mediation confidentiality! Related Posts: 2009 Developments in Mediation: Mediation Confidentiality (Dec. 31, 2009) The Uniform Mediation Act and Confidentiality (Oct. 2, 2009) Mediation Confidentiality (Sept. 19, 2009) Legislating ‘Bad Faith’ in Mediation (Sept. 4, 2009) Technorati Tags: ADR, law, mediation

The Alternative Dispute Resolution Section of the State Bar of Texas has recently published its Winter 2010 newsletter. The newsletter contains the following articles: Judicial Survey on Alternative Dispute Resolution Processes Preliminary Analysis and Report (2009) Improving the Quality of Healthcare: Resolving Claim Disputes in Medicine Mediation of Medical Licensure Issues Before the Texas Medical Board Thankful for Unanswered Prayers? Unconscionability Equilibrium Unconscionability and Arbitration One Shot or Two Shots Arbitration Ethical Puzzler Reflections From the Edge 2009: A year of ADR Idea ADR on the Web: Making Mediation Your Day Job You may download this issue here.