Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) encompasses multiple processes for dispute management outside of the state or federal judicial system. In lieu of judicial resolution, ADR may provide early, cost effective and a more therapeutic resolution to health care disputes including medical liability issues and organized medical staff-hospital disputes.
The most commonly known ADR forms include negotiation, mediation and arbitration.
Negotiation. The most frequently used form of ADR, negotiation involves two parties meeting in good faith to settle a disputed matter. Ideally both parties incrementally cede their positions until a mutually acceptable compromise is reached. Typically no third parties are involved, and neither party is bound to the final agreement.
Mediation. Disputing parties may prefer a neutral third party facilitate a dialogue. Mediation is permissible under the laws of many states if voluntarily pursued by both parties. Mediators help disputing parties talk through their differences, but the mediator’s ultimate determined solution is non-binding on the parties.
Utilizing a mediator is generally cheaper and faster than proceeding through the courts, particularly if the mutually agreed upon mediator is both an expert in the field at issue and in dispute resolution. A mediator will typically interact with all the parties together before moving to speak with each side separately. Parties may choose to use or exclude attorneys. Mediation can also offer the therapeutic benefit of permitting parties to freely discuss their feelings before one another in ways that may not happen in a court. However, mediators do not have the authority to compel disclosures or discussions that the parties are unwilling to produce. Mediation proceedings are confidential.
Arbitration. Arbitration is often employed where negotiation or mediation have failed. To be used to settle disputes between physicians and patients, arbitration must typically be voluntarily agreed to after a dispute arises, as opposed to being a mandatory prerequisite to treatment (i.e., pre-dispute binding arbitration).
Arbitration characteristically employs a mutually agreed upon neutral third party with authority to issue a binding decision. As compared to litigation, arbitration moves quickly which permits a quicker result and lower attorney fees. While binding arbitration offers no appeal rights, the results and proceedings are confidential and do not enter the public record, and disputants have the ability to freely air their grievances.
National Practitioner Data Bank (NPDB)
All medical liability payments must be reported to the NPDB, regardless if the payment is the result of litigation or ADR. Payments include settlements and awards. This prospect has limited the desirability of ADR for some physicians who believe that litigation is less likely to result in a liability payout.
Commission on Health Care Dispute Resolution Progress Report
Final report of American Arbitration Association, American Bar Association, and AMA joint panel on the use ADR in the private health plan/managed care environment.