Mediation in Detail

Collaborative Problem Solving

Experience has shown in many instances that mediation can forestall other, more 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.

Relation to Internal Grievance Process

The fact that health care providers may be using mediation, and/or arbitration in their internal grievance process is 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. Mediation has been found to be one of the most effective means that care providers can use to work through problems cooperatively with their patients instead of using other types of conflict resolution.

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. It gives the complainant the opportunity to be heard as well as address their emotional issues. 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. Many times the complainant's anger is defused through personal interaction and the process can lead to a sense of closure about a disturbing event. 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 meditative intervention can achieve understanding, foster positive relationships for the future, and lead to resolution of problems before they escalate into adversarial confrontations.

Medicare Mediation Roles

The essential participants in the Medicare mediation are:

The person with a complaint
The person the complaint is against
The professional mediator

Optional roles may also be present at a mediation session:

A co-mediator
A mediation advisor

The parties themselves decide whether either auxiliary person will be present. The co-mediator is typically a volunteer with a professional background in healthcare, such as a physician, nurse, or health care professional. The co-mediator assists the mediator with medical issues during the mediation hearing.

The mediation advisor is a volunteer who is available to support the beneficiary or representative throughout the mediation process. This role is intended to help "balance the power" at the mediation session. The mediation advisor can help prepare the beneficiary/complainant to participate fully and actively in the mediation. He/she will answer questions about the process, help the beneficiary clarify the issues in his/her complaint, and to think about what their desired outcomes are. This is a facilitating role, not a directive one.

Agreement

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/she reviews the agreement with both parties and then all participants sign it. If the two parties do not come to a resolution, the patient can then choose to let the case go into the traditional medical record review process.

Time and Resources

The time and resources spent on mediation are relatively minimal and are certainly worth investing in 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 and/or legal proceedings. Every effort is made to schedule a mediation session at a neutral location, convenient for both parties. Mediation can also take place via telephone.

Confidentiality

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 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 released to the QIO in order to monitor any terms that relate to quality improvement efforts. The QIO handles agreements according to the federal regulations governing the confidentiality of QIO documents and materials.