Negotiating Life's End in Mediation?
Let's for a moment assume that I had not surrendered the contro
l of Dad's final days to his wife, into whose hands he has so indisputably placed them.
If you've been following this series, you may have concluded that my Dad's immediate family (step-children; my sister) are likely indifferent to, uninterested in or incapable of dealing with the end of Dad's life. My compassionate default is that these blood- and step-siblings are neither uninterested nor callously indifferent to my father's fate, but simply incapable of responding to this intensely emotional experience for family-historical, social, psychological, emotional or practical reasons.
Let's assume, however, that surrounding my father's hospital bed is a clamorous family, all expressing different concerns, desires, options, solutions and resolutions to the question whether to insert, or later remove, a feeding tube, remembering Ken Cloke's observation in his new book, Conflict Revolution, that a dispute occurs
not only between individuals, but in a context, culture, and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu.
Do you have the hypothetical in mind?
What's a family to do?
In a comprehensive and award-winning article on this precise issue -- Negotiating Death, ADR and End of Life Decision-Making, Glenn Cohen -- who has accepted an appointment as an Assistant Professor at Harvard Law School, begining in the 2008-2009 academic year -- suggested in a Spring 2004 issue of the Harvard Negotiation Law Review that disputes in the death and dying context are often really "misunderstandings," in the sense that they are not real differences in opinion or belief about the "correct" treatment option. Cohen quotes one bioethicist who adopts a mediative model as follows:
[These] conflicts were often fueled by different perceptions of the medical facts, different understandings of the prognosis, different interpretations of patient behavior (generally relating to whether the patient was experiencing pain and suffering) and different personal value hierarchies. As we searched for ways to help patients, family members, and staff understand the clashing cultures and discordant assumptions that animated their arguments, we realized that the substantive parts of our interventions were more than outweighed by the process elements. Searching for the right theoretical model steered us to the frame and the techniques of mediation.
The mediators in my readership will not doubt the efficacy of neutral-intervention in these decisions. As my own experience demonstrates, however, no one sends a mediator or even the palliative care nurse or social worker to your loved one's hospital room unless someone has "hipped" you to the fact that they are available to you.
Listen, my first husband was a social worker and it wouldn't have occurred to me to ask for one at the hospital unless my health care executive friend had told me to do so. Nor would I have known there was a palliative care nurse on staff unless my friend the hospital hospice director hadn't told me her name and how to contact her.
So What, if Anything, Could a Mediator Do to Assist the Family in the Circumstances Outlined in My Hypothetical?
Training Issues
Cohen has systems in mind, not merely interventions, so he begins his proposed five-step model with training (echoing my question to the social worker -- "don't they train these doctors in active listening?")
Much of what we have said before about managing emotions [/*] is relevant here, as is the clarification of "professional emotions" on the part of doctors. Negotiation training for doctors is a must. . . . Already the negotiation field is beginning to tailor training programs to health care professionals by using narratives and cases developed by doctors for doctors. , and discussion of appropriate techniques with simulation, exercises and feedback." . . . . .
More specifically, [others] identify five types of ADR training and education: marketing efforts (convincing stakeholders to buy-in),awareness education (informing users what ADR is and what role it plays in the organization),conflict management and communication training (generic training not geared towards a particular type of ADR, [r]ather, it is focused on increasing participants' understanding and acceptance of conflict and on improving their communication skills, including active listening and direct communication"), consumer/user training (focusing on what to expect in the ADR proceeding, how to prepare for ADR, how to identify interests, options, etc.),and training of third-party neutrals.
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*/ But please don't let the family know that is what you are trying to do, i.e., manage, rather than support, their emotional responses to a loved one's final days.
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Bio-ethical Mediators
[A] bioethical mediator [would] help[] to identify all the parties and their interests, and develop a common understanding of the medical facts and options. For instance, consultants might be called in to finely tune a prognosis.
When coming into [a case], the [bioethical mediation] team asks: Who are the parties to this conflict? What are their interests? Are those interests in conflict and, if so, how might the conflict be resolved or consensus forged? This formulation grew out of the clinical finding that most of the events labeled "bioethical dilemmas" were really "conflicts" that pitted members of the hospital team against each other, or members of the team against some or all of the patient/family constellation.
The Creation and Use of an ADR-Oriented Ethics Committee
Membership: . . . . What is indispensable is that the panel not be insiders. If having physicians sit on the panel is seen as essential, it may be useful to use physicians who teach at local medical schools or who do not practice at that particular hospital. . . . . .
Initiation: In keeping with the sequencing of low- to high-cost methods of dispute resolution, the process should be initiated at the request of the patient, her family, any member of the health care team, or the bioethical mediator if he or she is unsatisfied with the resolution at Step 2.
Methodology: Here there is a spectrum of formality that will depend on the individual hospital and its resources, ranging from advisory arbitration to mini-trial. In principle, there is no reason why the Committee might not offer multiple options along the spectrum of formality at the election of the parties. Depending on the level of formality chosen, the parties might represent themselves or seek legal representation.
Opinion: This should be delivered in writing, be well elaborated, and be the kind of opinion that can give the parties information relevant to how a court might decide the dispute.
Bindingness: What is essential is that someone present at the arbitration process has the authority to bind the hospital. If power imbalances favoring the hospital are a concern in the process, one possibility to "retilt" the system might be to make the arbitration "asymmetrically binding," making the hospital abide by the arbitration decision while the opposing parties are not equivalently bound. If there are concerns about this, some kind of safety valve could be provided. For instance, the binding nature of the Ethics Committee decision could be overruled by a majority vote of the Hospital's board of directors.
Cohen's Conclusion?
Having used Terri Schiavo's case as a jumping off point, Cohen suggests that the experience of her care-givers, elevated for a time into a national controversy (see Cloke above)
highlights what each of us fears about our own deaths: that we will not die with dignity, that our wishes may not be followed, that decisions on our treatment may tear apart our families and bring rancor to the lives of those we love. Terry Schiavo's case also shows that in quelling our fears, the adjudicatory model offers scant succor.
While in theory, advanced directives offer a promising resting point for American jurisprudence's unsatisfying oscillation between full-on adjudication and completely private determination, in practice they have never caught on. The ideas and techniques ADR has
cultivated over the last thirty years offer us, and our families, a chance to do better. ADR can:
Concerns about cost, due process protection, and institutional resistance to implementing such an approach add complexity, but this article has suggested possible approaches to solve those problems. Moreover, these concerns have to be compared to those attaching to the status quo regime that consists of large amounts of "lumping" it. While the details of an appropriate ADR framework will vary from institution to institution, this article has offered a five-step model for implementing an ADR-informed approach to end of life decision-making, as well as discussing alternative options at every stage. It is only by
combining the work of fields such as medicine, law, and organizational development that we are able to provide a thing of major concern to the aging population of America: the assurance of dying well.
