The significant problems we face cannot be solved at the same level of thinking we were at when we created them. ~Albert Einstein There is no industry as ripe for the development and application of dispute resolution techniques and processes as healthcare. Incorporation of negotiation, mediation, facilitation, and dialogue techniques with emerging issues such as patient safety, healthy clinical environments, labor shortages, bioethics, technological advances, public health emergencies, health professions education, and access to health services will provide the necessary infrastructure for the evolution of the culture of healthcare. The Need for Healthcare ADR From its beginnings as an alternative to litigation, alternative dispute resolution (ADR) has evolved into a broad field of practice offering multiple processes for early and direct management of conflict. With increasing expenditures, decreased access to care, concerns regarding preventable harm during treatment, looming labor shortages, expanding consumer responsibility, and rapid technological advances, healthcare has become a breeding ground for poor communication, unhealthy work environments, strained professional relationships, unsatisfied consumers, frustrated purchasers, and complex public debates. Additionally, the interface between law and medicine is strained as a balance is sought between open reporting of unsafe practices and compensatory justice for those harmed by treatment. Healthcare organizations, policy-makers, consumers, lawyers, and clinical care providers are all seeking better options for working together. Communication, Teamwork and Patient Safety The leading contributors toward injury during medical treatment are breakdowns in communication and teamwork. Intimidating behaviors, failure to address concerns regarding competence among peers, inappropriate hierarchies, and a culture of blame and shame continue to impact the ability of healthcare organizations to provide safe care and result in an increased mistrust of the health system by consumers. Healthy Work Environments Evidence of unhealthy and contentious work environments characterized by verbal abuse, inappropriate use of power, and lack of collaboration has been linked to turnover and loss of nurses from the workforce. National efforts for improving the clinical work environment have begun and calls for improved collaborative practice across the health professions from the Institute of Medicine, the National Patient Safety Foundation and other national organizations indicate a need for resources that can contribute to the development of collaborative cultures for delivering health services. Responding to Patient Harm Since 2001, the Joint Commission for the Accreditation of Health Care Organizations (JCAHO) has required that accredited organizations disclose unanticipated outcomes to patients and their families. Several states have also begun to require disclosure. Although many healthcare organizations have developed policies for conducting patient harm conversations, very few have implemented training to assist clinicians with skills and techniques for making these conversations productive. Additionally, insurers have varying requirements for how information is shared following an event that results in harm and healthcare professionals are often caught between competing obligations. Efforts to align interests and develop competencies for managing harm to patients are greatly needed. The recurrent “medical malpractice crisis” has again prompted Congressional and state legislative action to address barriers to public reporting and access to medical services. Prevention of harm to patients through systems analysis has been slowed due to the chilling effect of the current tort system on open reporting of errors and near misses. The current tort system does not improve safety, does not fairly compensate injured patients, and is not accessible to all who seek redress for quality disputes. New models for managing harm to patients are required. The Joint Commission for the Accreditation of Healthcare Organizations (JCAHO) has recommended expansion of the use of mediation for resolution of quality of care disputes, and the Department of Health and Human Services, through the Centers for Medicare and Medicaid, has initiated a mediation program aimed at improving resolution of quality of care complaints filed by Medicare beneficiaries. Recent statements by JCAHO indicate major changes are necessary in the management of patient injury to foster a more transparent approach to improving patient safety. Improved methods for addressing harm during treatment are essential for preventing future harm and for meeting the needs of patients who experience unanticipated outcomes, whether caused by error or as a result of predictable complications associated with complex medical care. Alternative dispute resolution methods that support patients, protect the reputation of clinicians, and enable systems improvements are needed. Bioethics and End of Life Decisions Technological advances in diagnosing and treating patients have far surpassed the organizational structures necessary for supporting such technology and have created many ethical dilemmas that continue to be a source of conflict within healthcare organizations. End of life decisions are often made more difficult by family conflicts that frequently surface as families struggle with legal and ethical questions layered on top of complex clinical scenarios. Public debates regarding definitions of life and appropriate use of technology continue to impact clinical decision-making and make their way into political debate. Bioethics committees are frequently called upon to expand the scope of their practice to include management of conflicts arising among and between families and clinical teams. Integrating ADR processes into bioethics consultation is a new area of application for dispute resolution and one that will expand as medical technology continues to advance and the demand for health services continues to increase. The Expanding Role of Consumers in Health Services The erosion of trust in and within the healthcare system impacts patient care and increases cost of health services. Improving trust between patients and care providers leads to decreased provider switching, improved compliance with treatment plans, decreased lengths of stay in healthcare facilities and decreased litigation. With an increasing focus on consumer-based healthcare and calls for improved communication between patients and the healthcare community, programs for developing collaborative partnerships are required. Patient advocacy training and communication programs for improving skills for both patients and professionals are necessary to create productive therapeutic relationships that do not become adversarial or contentious in the midst of illness or injury. Integrating the patient perspective into clinical decision-making and organizational operations is a key to developing patient-focused care. ADR processes can form the foundation for these partnerships by integrating the diverse interests and needs of those providing services and those seeking them.

Improving Access to Justice and Legal Services Attorneys can make use of ADR processes to expand the options for resolution of disputes and access a broader range of remedies for clients. The litigation model does not provide many of the things that clients in dispute are seeking, such as apology, change of behavior, a chance to tell their story, improved relationships, reconciliation or forgiveness. Money damages are not an adequate substitute. This is particularly true in healthcare disputes where there are frequently high emotions, high stakes, differing values, and a deep reliance on trust and respect. Additionally, the cost of litigation is a barrier to access for many clients and prevents access to justice for those who may need it most. Finding better approaches for lawyers to meet the needs of clients who are seeking help in response to healthcare issues is necessary. Integrating collaborative law practices, therapeutic jurisprudence, mediation and interest-based negotiation can help balance damaging adversarial approaches that may not meet the needs of clients. Training Healthcare Professionals Training of healthcare professionals continues to be segregated by professional category leading to a lack of understanding of the contributions of each group, differing professional cultures, and variable philosophies for caring for patients. Clashes among the various subcultures play out at the patient’s bedside in the form of disputes over credentialing, scope of practice, treatment decisions, and compensation. Recent empirical data indicates that physicians spend more than 50% of their work day dealing with conflict, predominantly conflict with other physicians and administrators. Despite the prevalence of conflict in the clinical setting, the majority of healthcare professionals have not had any training in basic conflict management, team skills, interest-based bargaining or dispute resolution. Calls for incorporating communication, conflict management and understanding of systems into clinical training programs are very recent. Schools providing training in the health sciences and health administration programs are looking to expand curricula to educate students and assess competencies in communication, teamwork and conflict management. The Culture of Healthcare The very culture of healthcare itself has lead to ineffective approaches to conflict resolution and is thought to be at the root of system breakdowns that lead to unsafe care. Examination of errors occurring in healthcare organizations internationally reveals system breakdowns that are not dependent upon a particular nation’s system of financing care delivery or legal approach to management of injury, suggesting the culture of healthcare itself is more of a factor. Research indicates that the culture among healthcare professionals is one of conflict avoidance and last minute power-based negotiation, yielding what is perceived as a “passive-aggressive” approach to conflict which damages working relationships and increases the likelihood of communication breakdowns that lead to treatment errors. Additionally, differences among professional subgroups as to definitions of conflict and cooperation and perceptions of collaboration and teamwork make coordination of care difficult and resolution of conflicts less likely. The vast majority of healthcare organizations rely on power-based or hierarchical procedures for addressing grievances. These processes are seldom participatory, reinforce indirect communication, are often accessed after a dispute has escalated, and are time-consuming and costly. They are also ineffective at getting at the root cause of a conflict and can lead to recurrence of the same or similar conflicts over time. ADR practices can help healthcare organizations and professional practice groups surface deep assumptions that drive the behaviors that maintain the status quo. Integrating dialogue and interest-based processes into day-to-day clinical practice can improve the negotiation skills of professionals, encourage early and direct resolution of disputes, and build better working relationships across professions. ADR techniques can assist in replacing “blame and shame” cultures with collaborative practices that further the development of learning organizations. Support for the Advancement of Healthcare ADR Support for the advancement of the field of healthcare dispute resolution comes from the national call for improved quality and expanded safety within healthcare organizations as referenced in the following: Joint Commission on the Accreditation of Healthcare Organizations recommendations- July 2004 "Since the majority of perinatal death and injury cases reported root causes related to problems with organizational culture and with communication among caregivers, it is recommended that organizations: Conduct team training in perinatal areas to teach staff to work together and communicate more effectively." Found at: http://www.jcaho.org/about+us/news+letters/sentinel+event+alert/sea_30.htm Institute of Medicine "Recommendation 5-6: Healthcare organizations should take action to support interdisciplinary collaboration by adopting such interdisciplinary practice mechanisms as interdisciplinary rounds, and by providing ongoing formal education and training in collaboration for all healthcare providers on a regularly scheduled, continuous basis." IOM Report: Keeping Patients Safe: Transforming the Work Environment of Nurses. The National Academy of Sciences, 2003 Patients and their families are aware of the level of teamwork and collaboration within a unit and this is a primary basis for referring others to the facility for care. Press Ganey Satisfaction Report, Vol. VII, August 2003 Found at: http://www.pressganey.com Recommendations by the Institute for Safe Medication Practices: Open the dialogue about workplace intimidation. Hold frank discussions using objective moderators to keep the conversation productive. Establish a standard, assertive communication process. Establish a conflict resolution process to communicate effectively and protect patients, not to punish, embarrass, or coerce involved staff. Be sure the process provides an avenue for resolution outside the typical chain of command if the conflict involves a subordinate and his supervisor. Enforce zero tolerance for intimidating behaviors, regardless of the offender’s standing in the organization. Expect intimidating behaviors to reemerge and establish a process for dealing with each reported event. Provide ongoing education that reinforces your organization’s commitment to caring and respectful culture. Use role-play to strengthen skills associated with assertive communication, conflict resolution, and interpersonal interactions. Reward outstanding examples of collaborative teamwork, respectful communication, and positive interpersonal skills. Found at: http://www.ismp.org/MSAarticles/intimidation2.htm Institute of Medicine "Recommendation 5-6: Healthcare organizations should take action to support interdisciplinary collaboration by adopting such interdisciplinary practice mechanisms as interdisciplinary rounds, and by providing ongoing formal education and training in collaboration for all healthcare providers on a regularly scheduled, continuous basis."