| [Mediation Services] [adrr.com > Index > Health Care > Model Answer] -- [Mediation Books] |
Health Care & Dispute Resolution
Summer 2000
Model Answer Provided to the Class for Post-Exam Review
This is provided noting several things:
Question One:
Define Transformative Mediation.
Transformative Mediation is mediator-assisted interactive communication between the parties that aims to maximize empowerment (self awareness, self clarity) and recognition (empathy, awareness of others) with a goal of transforming the relationship between the parties on their own terms, without a focus on the mediator.
Question Two:
What are the purposes you can accomplish by having a group tell you who they are and why they are participating in your class.
Soliciting introductions from the participants in a class can have several beneficial results. For example, the information provided may help you, as the instructor, to meet the needs and goals of the participants. Also, issues and problems which might otherwise remain hidden might be disclosed by the participants during their introductions. Allowing the participants to speak in a non-threatening environment may help build consensus and a sense of community within the class group. If participants are encouraged to ask a question of the instructor as part of their introduction, the instructor may present his/her own introduction incrementally while potentially creating elements of bonding with the group. Also it helps people to feel engaged, builds unity along with understanding, is better than asking tough questions, and is easier to teach more effectively.
Question Three:
How might you institute an ad hoc program?
You could start with 100% volunteers and then move forward as follows, by: (1) taking a step - any step - towards implementing institutionalized mediation processes, (2) learning from the experience and tracking it, then (3) formalizing what works in that environment. Working through several steps will build a complete process. Once there is an established structure, (4) set up an intake procedure to move people and problems into the process. (5) build a cadre of volunteer mediators by training many and picking those who most effective to act as mediators, assigning them the problems to mediate (and not assigning mediations to those not as suited to the mediation process.) (6) record results and study them for modifications to the system.
One suggested starting approach, perhaps most effective if there is uncertain institutional support, is to ease their way into it by launching the program with an in-service training session. Use co-mediators to keep the environment less threatening as the new program is introduced. Just getting a dispute resolution program started and functioning with small successes will result in people developing increasing faith in the system and thus a greater willingness to participate. Adjust the program as needed from the beginning; it can be useful for people to see that a program can survive and work even though adjustments are required along the way.
Question Four:
Name and apply three metaphors that can be applied to Health Care.
Acceptable metaphors include:
Catering Restaurant, Assembly Line, Captain of the Ship, Wagon Train, Professional Sports (we are a team), Professional Sports (I am a star), Class Room, Tourists/Resort, Evil Empire, Prison, A Chain (the weak link in the chain), Lifeboat, War, Wolves & a sled.
Short answers/applications:
Catering restaurant -- patients are equivalent to customers while the medical staff is throwing the party and taking care of the guests.
Professional sports -- Team model (we're all working together towards victory as a group) vs. Individual Star model (we all work together to support one central figure).
Tourists/resort -- visiting patients are equivalent to tourists passing through, while staff is equivalent to town locals who live in the same place all year long.
Longer answers/applications:
The wagon train metaphor may be used to evoke common purposes, that we are all in this together, that the effectiveness and safety of the group requires strict rules and centralized control, that limited resources must be shared, sometimes we must sacrifice the interests of one for the good of the whole train, that the integrity and safety of the whole requires all to contribute, and that the failure or loss of one wagon can damage or lose the entire train. Also, a wagon train moves no more quickly than the slowest wagon.
The professional sports team metaphor has several of the same concepts, but is perhaps more timely, and also evokes more realistic images to a younger group not raised on westerns as a regular TV diet. This is a positive metaphor, as contrasted with the Professional Sports (I am a star) metaphor, the latter being positive only to a single individual and any of the few who devotedly follow him. Oddly enough, the formerly popular metaphors of war and battle were effectively replaced by Vince Lombardi training films. The sports team metaphor can evoke images such as: planning, timing and working together are needed to accomplish a goal; the dangers of the lone wolf or prima donna ruining the team performance; that strict rules and centralized control are necessary to maintain order and discipline; that someone has to be captain, someone has to be quarterback, and someone needs to block; sometimes we play offense, sometimes defense; sometimes we must sacrifice the interests (perhaps ego) of one for the good of the whole team; and many others.
Many training programs (for sports as well as business) use the volleyball team metaphor, because each player works through the several positions and gains an appreciation of what every else does and the need to work together - so that professional athletes in some countries are taught volleyball and made to play it just to teach them the metaphor.
Sometimes one wishes to use a metaphor as a negative comparison and make a statement in hyperbole to convince parties that changes need to be made. In that instance, a metaphor such as the Prison may be used. It evokes graphic images of overbearing rules, restrictions, low morale, unhappy staff, a few harshly imposing their will on many, a feeling of being confined, trapped or compelled to work against one's will, a lack of freedom - both physical and of speech, etc. Of course, care must always be used to avoid giving too negative an analogy.
Question Five:
Identify three negotiation styles.
We had five to pick from.
A good answer might have been:
The Aggressive negotiator, who always seeks to WIN. They are very forceful, and may threaten, insult, lie, demand one-sided gains, or ask for the outrageous. They often attack or fight , even when there is little to be gained from it except intimidation.
The Appeaser - sometimes called a cooperative negotiator, is open, always wants to see agreement, fairness, friendship, courtesy and places a high value on relationships. Often, appeasers will start negotiations at a realistic and fair position, or make concessions in hope of a morally-obligated response.
Those who flee or dither (sometimes called distractors), who are afraid of being hurt, want to win but don't know how or don't know what it means. They are often inconsistent, changing style or method frequently, alternating attack, appease, stall, run away… all to avoid losing.
Question Six:
What is framing?
Framing is the assessment of a conflict - the statement of facts and positions of the parties that describes and characterizes all of the known elements and facts contributing to the conflict situation. This forms a basis for analysis and the application of several techniques for the resolution of the conflict. It is a necessary step for understanding and a foundation for reframing the conflict and positions to resolve the problem. An individual's frame results from that person's interpretations, perceptions and objectives in a conflict or negotiation.
Framing may also be described as a skill to use within conflicts, including the negotiation setting, and it can be used by participants in a conflict to review where they are with their own side, by a mediator with both sides, or by a facilitator working with a larger group. Framing is a method to help people find and understand - assess - the issues to be able to negotiate and settle. Resolution is not instant, but the solutions reached by a framing exercise last longer. At each step one considers brainstorming, analysis and other tools to broaden self assessment, and assessment of the other side and the overall situation. Studies reflect that initial evaluations and initial proposed solutions are often wrong. In framing, always encourage people to ask themselves (and to ask the other side): What could happen that might cause you to change your mind? (e.g., what is the option that alters the results of your frame) and teach others the "why" and "what" that creates the frame that you operate from and that they need to address by their negotiations.
Question Seven:
What is negotiation?
Negotiation is the process of teaching others how to meet their needs by meeting your needs. Teaching and education are good metaphors for negotiation. Negotiation is also a tool to enhance trust and the value of long term relationships (the techniques and approaches differ in smaller conflicts and in short term relationships).
Question Eight:
What methods (rather than styles) of negotiation are there (as covered by the class)?
There is interest based negotiation (which works best with cooperative style negotiators) - often called "win-win" negotiation or whole image negotiation.
The other method of negotiation is positional negotiation (which is commonly used by aggressive negotiators) - often called "zero-sum" negotiation or win/lose negotiation.
Question Nine:
How many steps are there to framing?
There are seven steps to follow in framing a conflict:
A) Define the people involved in the conflict
B) Define the problems of the particular conflict
C) Examine the history between the parties to the conflict
D) Discuss preferences of the parties for processes to be used in negotiation
E) Determine the expected outcomes of each party
F) Prioritize the various outcome possibilities
G) Create, evaluate and exchange stakes
Question Ten:
What are the stakes in a negotiation?
The stakes are those things which may be gained or lost in the negotiation - the matters at issue. They are the costs of settling, not settling or delaying. They are the benefits of settling, not settling or delaying. And they may even be the costs or benefits of the negotiating process itself - adding or detracting from the relationship between the parties. Item seven of the prior question on framing lists several questions to determine the stakes in a particular situation.
You can find the stakes in a negotiation by asking the following questions:
A simple answer might have been:
The stakes are what the other side is offering that you want, the results of settling that are painful, the things that might be created by the parties, and the uncertainties that might come to pass (and from which we might be able to create a settlement).
Question Eleven:
What are the pressures on health care? Discuss several of them.
There are a large number of factors placing pressures on health care: Financial, political, government and statutory, managed care, ethical issues, aging population demographics, public perception and opinion are just some of them.
Financial pressures are extreme - there is an almost unlimited cost of medical treatment and only limited resources that exist to pay for it. There is a resulting pressure to do more with less. A simple example is replacement of staff time by use of voicemail and automated telephone systems - patients become frustrated that they cannot talk to a human being, but only can reach a telephone answering tree that requires them - at their peril - to pick from one of the offered choices, rather than speak to someone knowledgeable who can help them. Huge sums of money are required to pay for highly technical equipment, and it is often unavailable to most patients because their insurance does not cover it, such as laser eye surgery.
Managed care is perhaps the most extreme pressure on health care today. Excepting the few hospitals that rely on charitable funding and don't charge (i.e. the Shriners' burn centers and Masonic children's hospitals,) almost all health care providers have to function with the constraints of HMO's, PPO's, Medicare, and other forms of insurance and medical coverage. These constraints are a major source of friction between the providers and those fiscal intermediaries who dictate what care to a given patient will be reimbursed. Many physicians contend that they are being told how to practice medicine by those fiscal intermediaries; many patients contend that they are being told they can't get proper medical care by those same fiscal intermediaries.
An aging population is yet another pressure on health care. Not only is it changing the nature of practice to require more geriatric practitioners, it is also allowing the population to live long enough to greatly increase the number of people afflicted with diseases that previously were relatively uncommon - simply because people died of something else before they were in the high risk zone for those diseases. Also, the aging population requires a great deal more in the way of prescription medications than a younger population - often at huge costs - and not covered by Medicare, resulting in greater governmental pressure for a prescription drug program for the elderly. The aging population means a much greater percentage of the population is making significantly greater demands on the healthcare system.
Question Twelve:
What is the strongest change in vocabulary that you can make in a framing/reframing situation?
The strongest change one can make in vocabulary in framing/reframing situations is to delete the word 'but' and insert instead the word 'and.' This often works well when engaged in active listening, for example, saying "I appreciate that ...." - with no "but" afterwards, instead saying something such as: "and here is another factor for us to consider…" or "I would like to go to dinner with you, and I have a homework assignment to grade" or "I understand that you want the car for a date and that your sister needs to be dropped off at piano lessons."
Question Thirteen:
If you have to deal with a politician, what are some of the things you can do?
In dealing with a politician, ask oneself several questions:
A) Which question are they really asking?
B) Who should be asking the question/on whose behalf is the question being asked?
C) Do we need a systems solution or an isolated solution for this problem?
D) Is a central system a help or a hindrance for this problem?
E) If I narrow my role, will I be ignored?
F) If I expand my role, do I become more important?
Question Fourteen:
What is the role of a mediator?
It is the mediator's role to assist the parties by:
A) Continually asking process questions, such as: What can the parties offer? What are the key misunderstandings? What are the parties' interests? What are the lies and the exaggerations? Are the parties exchanging equal value?
B) Acknowledging and assuring the parties (By and through active listening)
C) being neutral
D) setting rules and managing the process
E) providing inventive input
F) persuading and enlightening
Mediators help people in resolving conflicts by assisting the parties to appreciate what the issues are, to understand ways of viewing the problem, and then to communicate effectively.
Question Fifteen:
In bioethical disputes, what limits are caused by the law?
The law creates some necessary guidelines in dealing with bioethical dilemmas are that
A) capable patients MUST be allowed to make their own decisions
B) surrogates must be chosen in compliance with applicable law
C) though parents can consent for children to receive care, they may not be equally free to deny care and there may be reporting requirements if care is denied to a child.
Question Sixteen:
Describe one of the ways how an Ombuds might be used in a health care setting.
There are two easy answers to this question, one long and one short.
An ombuds' purpose is to prevent and resolve conflicts, including competency based disaffiliation, by filling gaps in communication, educating parties and generally troubleshooting conflicts before they develop. The ombuds is an institutionally neutral position that works best in cultures that accept the concept of neutrals within a bureaucracy.
One might use an Ombuds to intervene in pre-peer review situations. The trigger for this approach is a constant, above normal, stream of peer review issues or pending peer review issues that are starting to fester or brew into a significant conflict. To select an Ombuds I would look for retired or soon to retire persons in senior status that are respected within the institution, such as senior physicians, nurses and administrators, who have excellent skills and abilities for these positions. Because of their retired status - at least from the sense of practicing their prior profession - they are viewed as true neutrals who also have an understanding of the frame in which the disputes are occurring and the pressures on the parties in a peer review situation. Thus, they often are viewed as competent, credible and neutral.
One could also use an Ombuds to deal with patient complaints, especially those involving hurt feelings and rudeness of staff issues.
In either application, the ombuds would have the authority to request and obtain access to information and must have a clear understanding of the duty of confidentiality. Duties of the ombuds might be summarized as investigation, counseling, fact-finding and acting as an intermediary in negotiations and formal mediations in either setting.
Question Seventeen:
Describe how you might change a framing exercise into a case study.
It takes several steps to convert a framing exercise into a case study or role play. First, frame the conflict, thus creating a list of all the elements needed for the case study. Second, tell a story that has all the elements of the frame fitted in -- the order of inclusion of each element might be vastly different than in the original framing exercise. Third, assign individuals or groups to play the roles of each of the primary and secondary parties. And finally, rewrite the stories for each party, giving to each role-playing group only the information pertinent to the specific role they are playing (e.g., groups will not have access initially to viewpoints, BATNA's, hidden issues known only to other parties at the outset of the case study).
To do this, consider the following steps:
1. After framing a conflict through the seven steps set forth in Question Nine, use the framing exercise as a list of all the items needed for the case study.
2. Draft a narrative that has all the elements of the frame fitted into it, starting with a history of the conflict and facts of the dispute.
3. Describe the conflicting positions taken by each of the parties.
4. Summarize the activities, interventions and role of the neutrals in facilitating their negotiation, and how the parties were guided through the negotiations to agreement.
5. Describe the outcome and agreement reached by the parties.
To use the case study further as a role play:
a. Utilize the first three steps, above, and assign individuals or groups to take the part of each of the primary parties and secondary parties. Give each party a tailored copy of the narrative set forth in steps 2. and 3., but not 4. and 5.
b. Supplement the stories for each group or party, so that each side does not have the exact same story to work from, giving each side information not available to the others such as BATNAs, hidden issues, different beliefs about the facts, etc.
c. Select one or more mediators and give them the materials set forth in item a., and maybe some of the information from 4. above.
d. Commence the role play.
e. After it is over, provide the information from 4. and 5. for the participants to use to compare their results with what really happened.
This material in wordprocessor format
Copyright 2000 Stephen R. Marsh
All Rights Reserved
Contact information at
http://adrr.com/smarsh/