Cooling it gets hot - Conflict management

Physician Executive, July-August, 1999 by David O. Weber

* A YOUNG WOMAN with cerebral palsy dies after a routine, minor surgery. The family believes the New England hospital was at fault and sues. The hospital is affiliated with a residential school for the handicapped that the young woman attended and that the family esteems highly. Yet they feel the hospital's extreme negligence poses a danger to other patients, and will only be corrected if a substantial monetary penalty is imposed. A mediation session is convoked.

The CEO of the school/hospital's parent corporation addresses the family, offering personal recollections of the young woman. Though there is no formal apology the family is moved. They note that it is the first time anyone associated with the institution has talked with them directly since the young woman's death, other than "through the lawyers. They remain adamant, however, that the hospital's malpractice must be curbed The CEO assures them that, out of business considerations, surgeries are no longer being performed at the hospital. And he makes a settlement offer. The family consults with its attorney and the mediator and demands a larger sum. They add, however, that they will use half to fund a scholarship in the young woman's name at the residential school. After several more consultations and negotiations, the dispute is resolved to the satisfaction and relief of both sides, not least at having avoided the uncertainties of a July trial.

A noted scientist at the Baylor College of Medicine is accused of falsifying data on grant applications to the National Institutes of Health and in five published papers. He disputes the charges, blames two junior members of his laboratory team for the errors. Distraught at his tarring of their characters as disgruntled and dishonest, one abandons a promising career. Baylor convenes a review committee, which concludes reluctantly that the scientist himself is responsible for the fraud. He claims the committee members tampered with evidence and intimidated witnesses. An appellate committee is assembled by the medical school to unravel the welter of claims and counterclaims, Again it points the finger of blame at the scientist, who responds that the panel was corrupted by his enemies at Baylor and the NIH Office of Research Integrity.

The conflict is finally submitted to the Departmental Appeals Board (DAB) of the US. Department of Health and Human Services, which since 1981 has mediated and, if necessary adjudicated such thorny matters. At the recommendation of both parties, the Chairman of the department of biochemistry and biophysics at the University of California San Francisco is appointed to sit as the neutral expert on the three-member panel. He and his DAB colleagues conclude, after another - full hearing, that the scientist indeed committed scientific misconduct. He is debarred from eligibility for federal grants and contracts for a period of five years.

A non-profit Massachusetts HMO is bought by a for-profit company The HMO's 1,800 physicians claim that they are owed money that had been collected from them as refundable membership fees and risk set-asides. The HMO's new management and the Attorney General of the Commonwealth reject the claim, the latter arguing that all proceeds of the sale must be used exclusively for charitable purposes. A community health care coalition strongly supports that position. A mediation team is brought in to orchestrate a negotiation that involves the counsel and board member from the for-profit HMO, two lawyers from the Attorney General's office, and two representatives of the physicians group.

The mediators quickly recognize that efforts to resolve the issue are being thwarted by a phantom "second table"- the constituencies that each of the parties at the "first table" report to. They include all the aggrieved doctors, the elected AG with political ambitions, the HMO 's corporate board and management. the court that maintains final jurisdiction over the transaction, the broad community, and the media. Once this is pointed out to the participants, they agree that any problem for one of them poses a problem for all A process is slowly elaborated by which the negotiators can reach a tentative resolution that will be amenable to testing at the "second table to assure that no one constituency will torpedo a settlement by a last-minute veto. The parties then work together to help one another obtain the approval each needs.

Conflict is inevitable

Conflict, observes Leonard Marcus, PhD, Director of the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health, is an inevitable part of work and relationships. How conflict is handled determines what can and cannot be accomplished personally, professionally, and organizationally.

Health care is a field of such breadth and complexity that the opportunities for conflict defy categorization. Working under the pressures associated with contemporary health care is a process of constant negotiation. Health care professionals and their associates must continually make decisions, take actions, and select options-sometimes independently, often in consultation with or under the direction of others. Health care transactions, Marcus points out, involve both the exchange or allocation of intangibles-information. expertise, knowledge, skill-and of tangibles: money, equipment, space, supplies, personnel. Because a health care worker's responsibilities are so closely intertwined with those of others, eliciting mutual involvement and achieving satisfaction is largely a matter of negotiation. The effectiveness of one's performance and of one's enterprise, then, Marcus says, is dependent upon the proficiency with which one plays a constructive role in negotiations, anticipates and deals with conflict, a nd contributes to resolution.