Medicare Beneficiary

Mediation

Nature of Mediation

Mediation is a form of conflict resolution that brings two parties together in a process conducted by an impartial third party (the mediator). Medicare is introducing this process as an alternative to medical record review for beneficiary complaints. Mediation is a process that often results in increased satisfaction for the participants. It is not a binding arbitration. Participation is voluntary. By its very nature, mediation is a process in which the parties willingly decide to participate. One or more of the parties may need to be persuaded, but it is the eventual consent of the parties that gives the mediator the authority to work with them; there is no other basis for that authority.

Confidentiality is a key component of mediation. In order for mediation to be successful, both parties must feel as free and open as possible in their attempts to work through their conflict. No record is kept of the proceedings and any notes taken during the mediation session are destroyed. Nothing said during the mediation can be used against either party in a court of law. All parties, including the mediator, need to agree that all statements made during the process will be kept confidential unless the parties agree otherwise. If and when the parties reach an agreement, however, that agreement and its particulars are usually released to the QIO in order to monitor any terms.

How Does Mediation Differ from Arbitration?

Arbitration and mediation are differing forms of conflict resolution, as is a trial in civil court.

Arbitration is an adversarial process in which the arbitrator does fact-finding by hearing each of the parties and by examining any witnesses and/or documents that the parties may present. During a designated period of time, usually 15 to 30 days, the arbitrator weighs the evidence and decides the case in a written award. The award is usually binding and enforceable by a court. Sometimes parties prefer a non-binding or advisory award.

Mediation is a consensual and collaborative process in which the parties have agreed to participate in good faith and to authorize a third party, the mediator, to facilitate efforts to reach a resolution of their conflict. In contrast to arbitration, the parties themselves decide the outcome and create a mutually agreed-upon resolution. The primary focus of the mediation is on the relationship between the parties and the development of each person’s insights into self as well as to the other person’s perceptions.

Once both parties have reached an understanding and decided how to settle the conflict, the mediator writes up an agreement based on what has been said. He or she then reviews the agreement with both parties, who then, along with the mediator, sign the agreement.

If the two parties involved in a beneficiary complaint do not agree and come to a resolution, the patient can then choose to let the case go into the traditional medical record review process.

Mediation in Health Care Complaints – Its Potential Effects and Advantages

Collaborative Problem Solving

Experience has shown in many instances that mediation can forestall highly adversarial means of dealing with a complaint or a conflict, such as litigation, appeals to public officials or attempts at media publicity. A high percentage of beneficiaries become convinced that collaborative problem solving, by way of mediation, is a desirable alternative to adversarial confrontation.

Time and Resources

The time and resources spent on mediation are relatively minimal and are certainly worth investing for the potential rewards of generating good will, understanding and the constructive resolution of a complaint. A mediation session typically takes two to four hours, significantly less time than traditional medical record review. Every effort is made to schedule a mediation session at a neutral location, convenient for both parties. As an alternative, a mediation can take place via telephone.

Participant Satisfaction

A major reason for the growing use of mediation as a way of dealing with conflicts is the satisfaction that many individuals experience when they find that they have the opportunity to communicate directly with the responding party. Under such circumstances, it is not unusual for a complaining party to be satisfied by a reasonable explanation of why the events occurred the way they did. Furthermore, an apology (if appropriate), as well as assurances that other beneficiaries will not experience the same situation, can also add to the success of a mediation. Repeated experience demonstrates that even a fragmentary mediative intervention can achieve understanding and resolution of problems before they escalate into adversarial confrontations.

Relation to Internal Grievance Process

The fact that you may be using mediation and/or arbitration in your internal grievance process is, of course, not the same thing as an external intervention. There will always be cases that will not respond to an internal process because of a perception of bias resulting in some sort of adversarial negotiation. To allay any anxieties about external intervention, it may help you to know that mediation is the most effective means of working through problems cooperatively with your patients.

Selection of Cases for Mediation and Examples

The types of cases that will go to mediation are those where significant quality of care problems are not present. After a complaint is received from a beneficiary, an initial peer physician review will be done to make this determination.

Some examples of cases for which mediation is suitable:

The beneficiary says he or she was given the wrong medicine, and the medical record shows the medicine was correct, but the instructions given were not clear or completely understood.
The beneficiary's representative states his or her parent was discharged before he or she was able to walk. The medical record shows that the patient could walk with assistance, physical therapy in the home was ordered, but the family did not understand what arrangements had to be made to start the care at home.
The beneficiary states that the care received from an orthopedist for neck pain did not help her. The medical record shows that the physician discussed a variety of available options for care. However, the beneficiary did not make a choice and did not return for a follow-up visit.

Malpractice Claims

Data shows that there are two major ways that practitioners and providers can reduce the risks of malpractice claims:

1. Through prevention, by finding out and addressing why a patient complains and takes legal action

2. By addressing complaints, when they do occur, in the least confrontational and the most personal human way, investing the time it takes in talking with the patient about the complaint

More frequently than not, a complaint arises from a patient’s perception of error or negligence rather than certifiable acts or omissions. The key factors in complaints are a breakdown in communication resulting in patient dissatisfaction. The highest frequency of malpractice claims comes from patients who feel rushed, ignored, receive inadequate explanations or advice, and perfunctory attention during routine visits. Malpractice attorneys say that 80% of malpractice cases come out of communication issues. There is also some evidence that good communication can enhance the quality of care.

When complaints do occur, one of the least confrontational ways to address them is through mediation.

References:

Localio, AR, et al. “Relation Between Malpractice Claims and Adverse Events Due to Negligence”: Results of the Harvard Medical Practice Study III, New England Journal of Medicine, 1991; 325/4, 245-51.

Lown, B, MD. The Lost Art of Healing., ct. 1996, 1999.

Penchansky, DBA and Macnee, C, PhD, RN. “Institution of Medical Malpractice Suits.” Medical Care, 32/8, 1994, 813-831.