Mediation offers strategy for ethical conflicts

Process stimulates discussions and levels the playing field

Mediation long has been known as an alternative way of resolving civil legal disputes. But as the following case study illustrates, it is emerging as a new way to help resolve conflicts in medical settings.

Mr. D is an 82-year-old patient who has been admitted to a hospital’s cardiac care unit and has recently undergone quadruple bypass surgery to open four occluded blood vessels. Due to uncontrolled diabetes, advanced age, and other health factors, he was a poor candidate for surgery. However, surgery was his only chance for survival.

Unfortunately, Mr. D did not recover from the operation. Instead, he has an open surgical wound that will not heal and has developed an infection. Despite Mr. D’s prior statements to intensive care personnel that he did not wish to be "kept alive on machines," his wife insists that all available measures be used.

The intensive care unit personnel have tried to gently indicate to Mrs. D that her husband’s condition is terminal, but they have not been blunt. Mrs. D is clinging to the belief that her husband will recover. Her insistence on invasive care interventions, and the emotional conflict this is causing among the care team, has led the nursing supervisor to request an ethics consultation.

Instead of convening an ethics committee, however, the hospitals asks a hospital-employed mediator to talk to all parties and attempt to negotiate a resolution.

As a first step, the mediator meets with Mr. D’s care team to get their assessment of his condition and his prognosis. Then, she asks three representatives of the team to meet with her and with Mrs. D.

At the meeting, the mediator explains to Mrs. D that she is employed by the hospital and is called in when there is a disagreement between caregivers or caregivers and family members about the care of a particular patient. She tells Ms. D that her role is to ensure everyone’s voice is heard and to see if a resolution can be achieved.

The mediator then explains to Mrs. D that her husband is dying — and his death is likely to occur within the next 24-48 hours. She describes the nature of his condition and the attempts that have been made to treat him.

The mediator then elicits information about Mrs. D, discovering that she has no surviving children, no involved family, and few close friends. After a discussion between the care team and Mrs. D, facilitated by the mediator, Mrs. D requests the support of her rabbi. She then agrees that her husband would not want invasive measures, and asks to pursue a course of only palliative care. 

The above case study is featured in a new book, Bioethics Mediation: A Guide to Shaping Shared Solutions, written by Nancy Neveloff Dubler, LLB, director of the division of bioethics in the department of epidemiology and population Health at Montefiore Medical Center in New York City, and Carol B. Liebman, JD, director of the Columbia Law School Mediation Clinic and an instructor in professional ethics.

Mediation is a process that allows all parties in a dispute to come together on a level playing field and feel assured that their positions will be heard and treated with respect, Dubler says.

"What mediation does is help people who are in strained circumstances and very inarticulate, confused, and frightened. It helps them to mobilize their thoughts and their values," she explains. "It gives them an opportunity to present them. That is really critical for me."

As in traditional mediation, bioethics mediation involves a single "mediator" meeting with all parties in a dispute, helping them clearly articulate their positions and then guiding the parties in attempts to reach a decision that they can all accept.

Frequently, family members in crisis may not be able to articulate how they really feel or what they believe the patient might want, either because they are under such stress, or because they feel intimidated in the health care setting, Dubler says.

When a mediator is introduced, the family is able to talk about the situation with someone completely outside the existing dispute — someone who has not been a part of prior decisions the family may or may not be happy with. The mediator becomes a person they perceive as willing to consider their wishes equally with the interests of the hospital and health care team.

"It is having someone in charge who is committed to hearing all of the different positions, and, because [the mediator] is committed to hearing them, [he or she] makes it possible for them to happen," Dubler says.

Ethics mediation largely differs from ethics consultations in that the goal is an agreement between the parties — not a determination that one party’s decision "wins," says Autumn M. Fiester, PhD, director of graduate studies in the department of medical ethics at the University of Pennsylvania School of Medicine in Philadelphia, which recently sponsored a public panel discussion on the use of mediation in bioethics disputes.

When an ethics committee or ethics consult is called, frequently the parties will state their positions. Then the consultant or the committee will weigh the options and — using their own levels of education, knowledge, and values — make a recommendation.

"But who is to say that the committee’s values and decision-making process is more valid?" Fiester asks.

The committee process also may be compromised because the physicians often have prior relationships with committee members. This can create the impression with the family — real or just perceived — that their wishes are not given the same value or weight.

During mediation, the parties openly discuss the issue with a mediator whose stated goal is to remain independent and help the parties arrive at a decision. The mediator does not make the decision, she notes.

"I think this process uniquely fits bioethics disputes well because we are talking about individual patients and their families, and those are the values and beliefs that — within certain limits — we should honor," Fiester says.

Bioethics and legal mediation not the same

Mediation is based on three core principles: party autonomy, informed decision making, and confidentiality. Mediators usually convene meetings on neutral turf, with ensured confidentiality. This enables all parties to feel that they can speak freely, without concern that something they say can be used against them later.

While bioethics mediation shares many characteristics with legal mediation, there are important differences, Dubler notes.

In bioethics mediation:

  • The mediator is generally employed by the hospital.
  • The mediator and the members of the treatment team are repeat players.
  • The mediator provides information, enforces norms, and ensures that resolutions fall within medical best-practice guidelines.
  • Deciding not to reach a resolution is not an option.
  • The playing field is usually uneven for patients and their families.
  • Confidentiality is limited to information not relevant to patient care.
  • Time is of the essence.
  • Mediations involve life or death issues.
  • Facts play a different role.
  • The person with the most at stake — the patient — is frequently not at the table.
  • There may be a sequence of separate meetings prior to the group meeting.

If an independent mediator were to be used, he or she would likely not have the appropriate background in medical ethics, nor a sense of institutional policies and values, Dubler says. Thus, the mediator is most often employed by the hospital, which may detract somewhat from the patient or family member’s sense that this person is independent. However, this issue can be openly acknowledged and dealt with early on.

The mediator should disclose that he or she works for the hospital, and explain that his or her job is to facilitate an agreement — not protect the wishes or interests of the medical establishment.

Facts also play a different role because, in ethics mediation, it is not the mediator’s job to determine whose version of "the truth" is accurate, but only to help the parties reach agreement.

Deciding to agree to disagree is also not an option, Dubler adds. In most legal disputes, the parties in mediation can meet several times to work toward a decision. In bioethics, decisions frequently need to be made very quickly. And they must be made. Unlike the traditional settings, the parties cannot agree to do nothing. A solution must be pursued in some fashion.

"Bioethics mediation is a hybrid," Dubler says. "It combines the clinical elements of bioethics with the process of mediation."

Mediation not always the answer 

Mediation may not be appropriate in all disputes, Dubler says. For mediation to work, all parties involved have to want to achieve a resolution. If one of the parties is holding steadfastly to his or her position, unwilling to compromise, and unwilling to hear others’ positions, then the process will not help. This is rarely the case in medial ethical disputes, but it can occur, she notes.

Even when mediation is pursued, it is a difficult process in a health care setting, especially when the decision — as it often is — is extremely time-sensitive.

Dubler and Fiester’s book also contains examples of attempts at mediation that either did not work or the outcome was not optimal, Dubler says.

"This was not a Pollyanna document we were creating," she says of the book. "We wanted to pull cases that showed both the process and the problems."

Many good ethics consultants already use a form of mediation when they work with providers, patients, and families, Dubler adds. When she and Liebman sent copies of the book to several colleagues, many responded back that the already used mediation, but that the process had never been so clearly outlined.

"I think a lot of good, sensitive bioethics consultation people instinctively do mediation, [and] instinctively try to reach consensus. What we tried to do with this book is to try to make all of that articulate," she notes. "We have not rediscovered the wheel, but I think we have described it in a way that helps you roll it in a different way."

Future of bioethics mediation

In the future, Fiester says, mediation may be used for more than dispute resolution. She hopes it will provide ways for hospitals to help patients and families feel empowered and will encourage their participation in making decisions about their care.

"Many problems in health care institutions will not ever rise to the level that an ethics consult is called," she notes. "These patients and families may leave unhappy with the course of treatment, unhappy with their experience, and we will never know because they don’t know how to tell us."

As an example, Fiester notes the issue of expanded visitation in critical care units. Family members may want to be present for longer periods with a loved one who is dying — and providers may be OK with this — but the family never asks because they don’t know that they can.

In other instances, they may be unhappy with certain aspects of the care they receive, but don’t speak up because they assume "this is the way things are done."

An established hospital mediator also may allow patients and families and providers the opportunity to discuss options before disputes happen, Fiester says.

"There are many empowerment issues in health care settings," Dubler agrees. "I also do a lot of prison work. And I like to say a hospital is not a prison, but they take away your clothes, put a number on your arm, and stop you at the door if you try to leave."

Dubler hopes the book will provide a guide for institutions interested in developing the use of mediation at their facility. Many hospitals already are doing a good job, but they aren’t aware of the basic principles involved in mediation, and they aren’t as aware of some of the problems that can occur and why. "With the book, we hope you have some clarity about what your role is and what techniques might be useful."

Sources

  • Nancy Neveloff Dubler, LLB, Montefiore Medical Center, 111 E. 210th St., New York, NY 10467.
  • Autumn M. Fiester, PhD, Center for Bioethics, 3401 Market St., Suite 320, Philadelphia, PA 19104-3308.