Mediation for Physicians
By: Jay A. Ziskind, Esquire
DCMA General Counsel
Board Certified Health Care Attorney
Supreme Court Certified Circuit Civil Mediator
Over thirty years of legal practice representing hundreds of physicians, I have seen the toll that litigation takes on the life and livelihood of doctors. Physician litigation takes many forms: medical malpractice, hospital privileges, contract disputes, employment disputes, third-party payor claims, partnership disputes and dissolutions, divorces and yes, for some, bankruptcy and fraud allegations by a governmental agency. For years, I have generally advised clients, if at all possible, to resolve and settle their disputes particularly if my client is at risk for the cost of litigation and possibly the costs of the opposing party. Litigation takes its toll emotionally, time spent on the process, financially, relationships with patients, family and friends; and often the biggest fear is that of the unknown. If litigation takes its ultimate course, whether it is a jury or judge, the final outcome is based upon a complete stranger(s) deciding your fate. In the instance of a jury trial, you are being judged by your peers according to our legal system. Most physicians who take this road, unfortunately, don’t feel like they were judged by their peers.
After years of problem solving, negotiating, lawyering, compromising, threatening, etc., it became clear to me that there are often better alternatives to the win/lose adversarial approach called “litigation”.
Without giving an historical overview, over the years alternative dispute resolution (ADR) and specifically mediation has not only developed, but gained widespread acceptance by judges, lawyers and the public to the extent that many courts require litigants to mediate prior to scheduling a trial. It should be noted that many judges upon mandatory or voluntary retirement choose to become mediators. The transition may be difficult since mediation does not involve the process of judging.
Many negotiation models have emerged in the field of dispute resolution. One of the more prominent models, The Harvard Negotiation Project developed a seven-element model for systematic negotiation analysis.
The seven elements consist of:
1. Alternatives: What will each side do if no agreement is reached?
2. Interests: What do the parties really want? What are their concerns?
3. Options: What are some creative ideas that might meet the different interests of the parties?
4. Legitimacy: What are some objective criteria or standards that will help both sides figure out what is fair?
5. Communication: What are some strategies for improving our empathetic understanding of the other side, especially in situations of high stress?
6. Relationship: What might negotiators do in today’s negotiation to make their next negotiation with the other side more or less difficult?
7. Commitment: What agreements are realistic in this situation? What agreements could be counter productive?
This framework is intended to provide a practical set of concepts to help individuals think through negotiation problems.
As is evident from the model above, ADR and specifically mediation is vastly different from the trier of fact and jury model, which continue to dominate the field of litigation.
Programs on Negotiation at Harvard Law School Annual Report 1986-87
Circuit Civil Mediation Training Manual by Mediation Services, Inc.
The chart below more specifically outlines the comparisons of three types of dispute resolutions. In litigation/arbitration there is always a winner and always a loser. That should not be in a successful mediation. The costs and time involved are not significant compared to litigation/arbitration. Confidentiality is almost always preserved in mediation and most significantly decisions are not reached by third parties but are instead crafted by the parties in mediation with the assistance of the mediator.
COMPARISON FOR DISPUTE RESOLUTION TYPES
A. Time – long (months to year)
B. Money – expensive
Relationships lost or not improved
B. Imposed decision
C. Rules of Evidence and discovery
A. Time – short (one to six months)
B. Money – moderate
Relationships not improved
May not be
B. Imposed decision
A. Time – short (immediately)
B. Money – inexpensive
Relationship preserved or improved
B. Parties involved create decision
C. No rules of evidence or discovery
Circuit Civil Mediation Training Manual
By Mediation Services, Inc.
Fortunately for litigants today, the Alternative Dispute Resolution field in Florida is well defined and well accepted. Anyone who holds themselves out as a Certified Mediator is certified by The Florida Supreme Court through the Florida Dispute Resolution Center which develops and promulgates standards and rules. Each Certified Mediator must have attended a multi day course and have observed a minimum of eight mediations conducted by certified mediators as well as meeting an extensive background and application process.
Jay A. Ziskind, Esquire has served as General Counsel to the Dade County Medical Association since 1993. For a confidential inquiry, he may be reached at firstname.lastname@example.org or 305.753.5990.