Although this post will reflect my bias, if not prejudice on effective mediation techniques, it is not my intention to represent strict adherence to one mode or method of conflict engagement, discounting significant benefits of a multi-modality approach required by the competent ADR professional. In fact, regardless of which style a practitioner adopts, each method should be strategically and tactically deployed under the auspices of a capable mediation practice. To concentrate one’s practice, on-going continuing medical education and limit one’s skill set, even when our comfort zone demonstrates a proclivity toward one style of mediation, is to compromise our own necessary academic pursuits. This results in an inferior professional skill set when we offer our services as dispute resolution specialists.
Reflective insight, active listening, and creative engagement ensures that the disputants receive the superior services of a mediator with depth and breadth of skills to remain flexible and adaptive, providing elements of transformative, facilitative, and possibly narrative mediation techniques even when the concentration of efforts could be categorized as “evaluative methodology” from a subject matter expert.
First, a brief synopsis of transformative and narrative mediation methodology. Both techniques assume that the fundamental relationship between disputing parties holds a relevant history and value to the opponents as one superordinate goal of mediation process, to maintain a relationship going forward. In fact, the benefits of both techniques, supervised by a third-party intermediary, might improve the relationships by primarily exposing and dispelling bias, attribution errors, and unresolved issues that tainted the association and contributed to the current conflict.
The transformative approach to mediation focuses on the empowerment and mutual recognition of the worth in the individual and their opponent, rather than resolution of the immediate problem. Transformative mediators say that power and responsibility are the issues in a conflict, not settlement or compromise. Transformative Mediation focuses on empowering the relationship between people rather than simply the individuals themselves (as apart from any relationship). “Empowerment, according to Bush & Folger, means that the parties define their own issues and seek solutions on their own.” Empowerment does not mean power-balancing or redistribution, but rather, “increasing the skills of both sides to make better decisions for themselves” and for the “restoration to individuals of a sense of their own value and strength and their own capacity to handle life’s problems.” The mediator’s goals emphasize a mutually agreeable solution, but that is subjugated to enabling opponents to approach their current problem and potentially future problems with greater insight and empathy for the value in the relationship and perspective of their opponent.
Thus the rapport focused experience presumes that an enhanced relationship with positive intent toward one’s opponent will result in tolerance and acceptance of their goals and interests and provide rich supportive context to future negotiation by trusting and valuing the affiliation. Based upon my understanding of trust building, transformative mediators seek to create an identification-based trust (IBT) between opponents, and that “trust at this advanced stage is also enhanced by a strong emotional bond between the parties, based on a sense of shared goals and values.” .
Narrative Mediation differs fundamentally from transformative mediation and critically from evaluative mediation by altering the relational and emotional negative attribution one party has toward the other. The narrative model does not focus on problem oriented results or settlement. These are secondary benefits resulting from the parties altered storyline following revelation and perceptions facilitated by the mediator shepherding opponents through discovery of critical interests, experiences, and bias that formulate their perception of reality. Narrative mediation is grounded in the theory of social constructionism, which proposes that people are the “products of social processes” and that “much of what we know is hardwired into our psyches by the social and cultural world around us”. Opponents are influenced and manipulated by the conversations they experience that create opposing story-lines by different interpretation of truths and facts and non- synergistic interpretation results in dispute. Narrative mediation views conflict from the Winslade & Monk characteristic that “there is no single definable reality, but a great diversity in the ways we make meanings in our lives”.
Thus, narrative mediation views conflict’s arising because parties misinterpret the truth and facts about any situation. Since our individual perspective might be as unique as our DNA, conflict is viewed as the almost inevitable byproduct of diversity, rather than as the result of the expression of personal needs or interests . Therefore, in narrative mediation, the mediator’s job is to alter the opponents’ perspective by gaining insight into the dispute and discovering alternative story lines that will isolate a dispute from the long term relationship that was positive and mutually beneficial. In summary, narrative mediation does not search for one true story, but welcomes competing story-lines and alternative story conclusions by deconstructing the current conflict and re-framing the perspective of both opponents for an integrative conflict understanding and possible conclusion.
My personal orientation provides evaluative and directive mediation model to the medical practice and healthcare litigation disputes I am hired to mediate. The effective utilization of evaluative techniques complement my experience and skill set in healthcare delivery. Perhaps this is inevitable given my scientific and didactic approach to information, nature and the human psyche but this would be a superficial conclusion based upon my life’s work. As a consultant and subject matter expert, despite a conflict specialist’s fervent desire to explore the psycho-social issues that create conflict, I am convinced that most parties are seeking advice and resolution if they agree to private dispute mediation. Successful mediation must respect the goals of our clients which create the ethical mandate when contracting our services. Application of these techniques in healthcare medical liability dispute resolution favors the evaluative approach. The evaluative goals of problem-solving mediation concentrating on a mutually acceptable settlement of the dispute will require directing the investigative substance of the discussion, de-escalating the conflict through advisory consultation and controlling the step-wise process to determine if consensus and settlement is possible . As a physician utilizing the evaluative model of mediation, I am a nonclinical provider helping to understand and negotiate disputes within the healthcare system while supplanting my clinical orientation with an intermediary’s impartiality focusing on the likelihood of issue resolution in a fair and considerate agreement.
My research on the evaluative mediation model quotes Leonard Riskin’s introduction of the terminology of “evaluative mediation” as distinct from “facilitative mediation”. The key features are that the mediator was to: urge/push parties to accept settlement; develop and propose the basis for settlement; predict how the court might decide the case; assess the strengths and weaknesses of each side’s case; and educate each party about their own interests. Thus in evaluative mediation, the mediator focuses on the parties legal rights with a problem oriented, solutions based advocacy which might persuade the parties to reach a settlement conclusion. The mediator structures the process and directly influences the outcome through education. It was Riskin himself who questioned if his “evaluative mediation” was mediation at all. In rebuttal, Stulberg wrote “only the mediator who adopts a suitably … facilitative orientation is in a position to ground an approach to problem solving…”, essentially implying that facilitative mediation and all mediations require evaluative methods, and in practice, it is a mute argument since evaluative methods, when properly analyzed, are indistinguishable from facilitative methods. As an evaluative mediator I am always enthusiastic toward the analytical sequencing and conference with disputants, encouraging negotiation, collecting alleged facts, evidence and arguments, and providing information, opinion and advice which is altered in tone, timing and content based upon the emotional and cognitive positional demands from either party. In my example of application of this technique, medical malpractice litigation, both parties have “substantive opinions” introduced from “dueling experts”. As an evaluative mediator, I am a process facilitator to the mediation, and have the potential to provide compelling advice to both parties based upon the theme of the dispute. In reality, it is rare that the parties involved in medical malpractice litigation have any desire to maintain a relationship after claims are made and defenses rendered. Thus, an evaluative process concentrating on conclusion benefits of alternative dispute resolution over adjudicative litigation likely meet the expectation of both parties in conflict.
My mediation orientation as a medical expert provides a balanced approach to medical legal cases. The crux of the dispute is propaganda advocated from paid expert witnesses to challenge or support previous care provided to a plaintiff. The cases hinge on the “expert” paid for by the plaintiff or defense but the concepts of standards of care, critical to allegations of errors of omission or commission are often nebulous.
My role as an ADR specialist provides a reflective approach to evaluative mediation. Cases are sought out by physicians wanting to ensure they have adequate neutral subject matter experts participating in the closed door caucus where a plaintiff is often over enthusiastic about the chances of a successful litigation. In the same vein, my expertise is sought by lawyers, hospitals and courts in order to provide the same balanced perspective to these processes and not just a legal bantering seen too often between lawyers and mediators with strictly legal back grounds. I confirm my non- bias impartiality by reminding the medical personnel that an egregious error, if compellingly argued by plaintiff’s experts, will be equally considered when making my recommendations and/or looking for solutions that require a third party intermediary. In fact, my role for years on medical boards and medical staff demanded harsh critical analysis of healthcare mistakes through the peer review process. I have witnessed the effect of inadequate regulations and the spectrum of mediocre care.
With the maturation of the information age, patients are savvy consumers before and after treatment and challenging suboptimal and poor outcomes much more aggressively. With the glut of legal counsel available, disgruntled patients file claims, complain to medical boards, and with the prolonged process of litigation, the more entrenched they become in the victim’s role. As an evaluative mediator I examine the core medicine practiced relative to the plaintiff’s co- morbid medical issues and provide perspective on the likelihood of a strong plaintiff or defense argument. Hopefully in the third party position, I will truly understand through caucus communication if that plaintiff, as a patient, understood the risks and expectations of the care received as it is the providers responsibility that his/her former patient understood these issues.
Contrasting the advantages and disadvantages of evaluative mediation, the benefits allows party interview which is not encumbered by discovery rules of alleged facts, evidence, and settlement ranges, which have not been disclosed as a litigation tactic . As a third-party neutral and subject matter expert, I might provide a fresh insight into how an outsider, such as a jury, would view aspects of the dispute when paid experts are advocating for opposite conclusion. That role as a subject matter expert should give credence to advice regarding negotiation ranges and settlement and provide justification for plaintiffs, healthcare providers and insurance company representatives to utilize alternative dispute resolution to conclude the claim. Alternatively, the disadvantages of evaluative mediation include the dismissal of potential repaired relationships and devaluing emotional and psychological catharsis found in the deeper psychoanalytical approaches to conflict resolution. It is highly probable that a successful monetary settlement will do anything to heal the wounds of distrust and even malevolence rendered between parties. The human psyche may be forever damaged with a default cynicism in their worldview outlook following these proceedings. It is imperative that both plaintiff and defendant are allowed the opportunities for catharsis, empathy and peace building even if the focus is on a distributed demand encouraged by representative lawyers focused on economic gain.
A quote from Craig Pollock coins my interests “..one well known mediator, the late David Shapiro, was known to argue that the major difficulty he encountered with party representatives was their tendency to “fall in love with their own case” and the job of the evaluative mediator was to break up the love affair.” All too often I have witnessed emotion and dispositional demands flamed by a malevolent legal representative that prevents the interests, needs and ultimate psychologically stabilizing conclusion to a dispute. As a physician, I believe my focus on healing the effects of the human condition and temperament provides a welcome alternative to the legal authorities that dominate these alternative dispute resolution roles.