Since the COVID-19 pandemic began, the criminal justice system and its efforts of justice and reconciliation, commonly known as restorative justice, have taken a huge hit.

Disputing is synthesizing guidance documents from the AAA, CIArb, CPR, Hogan Lovells, and the ICC, as well as the Seoul Protocol, to provide a comprehensive list of best practices for remote arbitration.

Avital Mentovich, Assistant Professor in the School of Criminology at the University of Haifa, J.J. Prescott, Henry King Ransom Professor of Law and the Co-director of both the Empirical Legal Studies Center and the Program in Law and Economics at the University of Michigan Law School, and Orna Rabinovich-Einy, Haifa University Vice Dean, Professor, and Faculty of Law, have written “Are Litigation Outcome Disparities Inevitable? Courts, Technology, and the Future of Impartiality,” Alabama Law Review, Forthcoming.

Disputing is synthesizing guidance documents from the AAA, CIArb, CPR, Hogan Lovells, and the ICC, as well as the Seoul Protocol, to provide a comprehensive list of best practices for remote arbitration.

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.   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.

by Holly Hayes Our health care conflict resolution series began with Part I, applying the “principled negotiation” method to health care (post available here) and followed with Part II, examining a case study of “Separating the People from the Problem” (post available here). In this post, let’s take an example of a physician and a hospital group negotiating to buy the physician’s practice to see how “positional bargaining” results in failure to find a solution. Physician: I need you to buy my practice for $X and I will not take weekend call. If you don’t want to buy my practice, my partners and I can take it down the road to hospital Y. Hospital Representative: We are willing to offer you $Z for your practice and we must have a weekend call rotation as part of the deal. Physician: You don’t care about me or my practice, this discussion is over. Wise solutions acknowledge interests, not positions. The basic problem with the physician and the hospital representative is not that one is buying and one is selling, the conflict is between their interests or their concerns, fears, needs and desires related to the negotiation. What are some tools to help reconcile interests rather than merely seeking to compromise positions? In Getting to Yes, Roger Fisher and William Ury describe techniques for identifying interests so that options can be developed that meet both party’s interests. Ask “Why?” – put yourself in their shoes. Ask “Why Not?” — why doesn’t the other side agree with us? Realize each side has multiple interests – the physician wants a secure income for his family, he wants time with his family so he does not want to always be on call. Realize the most powerful interests are basic human needs – security, economic well-being, control over one’s life, a sense of belonging, recognition. Talk about interests – make your interests come alive for the other side. The hospital representative can talk about ways to include the physician in decision-making at the hospital and about what the hospital needs in terms of income to make a profit to reinvest in its people and physical plant. Using these techniques, let’s see how the conversation between the physician and the hospital representative is more productive: Physician: I need you to buy my practice for $X and I will not take weekend call. If you don’t want to buy my practice, my partners and I can take it down the road to hospital Y. Hospital Representative: I understand you have spent your time and your own income to build such a successful practice. You have been a great partner for us for five years. Can you help me understand how you arrived at the $X figure and talk a little about the call issue? Physician: We recently bought an MRI and quite a bit of other costly equipment that would be included in the purchase price. I have spoken with some other physician practices and this price seems fair. I just want to be fairly compensated for the value my partners and I have brought to this practice over the past five years. In terms of call, I want time with my family on the weekends. I am afraid that if one of my partners leaves, I will have to take both my call and their call and who knows when a new physician could be recruited. I want control over my life. Hospital Rep: Would it be alright with you if we had both your accountant and my CFO take a look at the practice financials? There are also some industry standards we could apply to the purchase price. As for call, you make a very good point about how much call would be needed. Of course, my problem is that I need to provide certain coverage or the hospital cannot provide certain services and those patients will go down the road. This is a problem across the country and I know many hospitals have begun to pay very high prices to provide call for certain specialties. I wonder if you would consider being part of our medical staff executive committee as part of a purchase package? This would not guarantee you no call, but it would give you a chance to help make policy about how we move forward. If we can reach agreement on purchasing your practice, it will take both of us to make the best decisions for a successful partnership. Physician: Yes, I can agree to those next steps. I am starting to feel a level of comfort that I will be treated fairly. As the two parties talked about their interests by asking questions and realizing that the most powerful interests are basic human needs, they both came closer to the purpose of negotiating — serving their interests and finding an acceptable solution. Part IV in our series will explore more on this topic – “how to invent options for mutual gain”. We welcome any comments you have about conflict you have experienced in health care and lessons you have learned. 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.