Running head: ALTERNATIVE DISPUTE RESOLUTION

BUSI 506

Alternate Dispute Resolution

Ashley Bostic

December 09, 2018

Respectfully submitted to: Professor Kippenhan

Liberty University
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Abstract

The focus of this paper is to provide an overview of the use of alternative dispute

resolution in healthcare to include Bible-based dispute resolution. While alternative

dispute resolution can be an efficient process for resolving conflict, this paper will also

explore problematic concerns when utilizing ADR to resolve malpractice claims without

or with limited litigation.

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Introduction:

Conflict is an unavoidable fact of life and in any workspace can be hindering to

productivity to any extent. In healthcare, professional conflict can be detrimental to both

the staff and patient safety especially when team performance is affected. Malpractice

cases in healthcare created a financial strain due to the high cost of litigation

[ CITATION textbook \l 1033 ]. When possible cases that can be settled without trial or

jury the expenses can be significantly reduced [ CITATION textbook \l 1033 ]. Alternate

dispute resolution (ADR) is a modern approach for a cost-effective way to resolve

disputes [CITATION sustek \l 1033 ]. ADR techniques are diverse and vary in use

depending on the situation or circumstance. It gives the flexibility of settling differences

without binding determination [CITATION hann \l 1033 ]. Some of the most frequently

used techniques are negotiation or apology, mediation, and arbitration all of which are

suitable alternative resolutions in medical malpractice cases [ CITATION sustek \l

1033 ].

Malpractice Claims in the United States

Malpractice is defined as the professional misconduct, improper discharge of

professional duty, or failure to meet the standard of care of a professional that results in

harm to another, the negligence or carelessness of professional person such as a nurse,

pharmacist, physician, or accountant [ CITATION textbook \l 1033 ]. In 2017, the House

of Representative passed a bill that would reform medical malpractice by topping

noneconomic damages at 250,000 dollars [ CITATION Jos17 \l 1033 ]. Many physicians

have adopted the practice of defensive medicine to reduce their risk of being a victim of

malpractice claims [ CITATION Jos17 \l 1033 ]. Defensive medicine increases the cost
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of healthcare due to ordering extra tests and other procedures to avoid being sued by a

patient [ CITATION Jos17 \l 1033 ]. It is estimated that 46 billion dollars are spent in

defensive medicine in the united states [ CITATION Jos17 \l 1033 ]. In 30 percent of the

malpractice cases between 2009 and 2013 miscommunication was found to be the culprit

of the claim in some form r another. Miscommunication about the patient’s diagnosis,

poor documentation, failure to read the chart, and incorrect or no results given to patient

are a few of the common issues in the communication process between the physician and

the patient [ CITATION Jos17 \l 1033 ]. When dealing with malpractice claims if not

handled correctly they can become quite costly to the provider or healthcare facility.

Having a basic knowledge of the alternative dispute resolution (ADR) options in

healthcare can benefit both the health care profession and the patient when resolving

disputes. When choosing to use you limit or eliminate the need for litigation leading to a

more cohesive working environment for staff and patients.

Alternative Dispute Resolution Techniques

Negotiation or Apology

One of the most empathetic and straightforward ADR techniques is the ability to

apologize and move forward with a negotiation that benefits both parties in the resolution

process. Negotiation is the least formal alternative techniques for resolving disputes

[ CITATION sustek \l 1033 ]. In most instances, people do not desire to ill or injured

when a sudden change in health status occurs it can be perceived as a traumatic

experience to the individual and family. When unintentional conflicts occurred if

acknowledge early enough and accompanied with an apology; negotiation can be a

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logical method to resolve a dispute and reduce the chances for litigation. When

committing to the negotiation process with the intent to resolve conflict or disagreement,

understanding the difference between a good and bad compromise is essential

[CITATION parijs \l 1033 ]. A compromise is an agreement that involves mutual concern

[CITATION parijs \l 1033 ]. In the absence of a compromise between two or more

conflicting parties' negotiation may not be the best option to resolve the dispute. In which

case may require an unbiased involvement of a third-party to facilitate further resolving

the dispute in a process known as mediation.

Mediation

Mediation started in the 1990s as a negotiation process [CITATION cheng \l 1033

]. It is an ADR technique facilitated by one or more neutral third-party mediators that are

usually chosen by the parties involved [ CITATION sustek \l 1033 ]. This technique

helps the progress of mutual trust between both parties and guide them to search for

shared interests [CITATION cheng \l 1033 ]. This process is more complex than

negotiation but can still be done informally without the involvement of lawyers saving

time and money [ CITATION sustek \l 1033 ]. Because mediation is non-binding, either

party can decline this process of resolution at any time during the process. Mediators are

in place to assist the disagreeing parties in reaching an agreement but cannot be forced or

coerced. Through mediation, the disputants conclude a mutually acceptable agreement

that was not suggested or dictated by the mediator leading to a “win-win” outcome for

both parties. If mediation is attempted with no success, a more formal resolution may be

required such as arbitration.

Arbitration
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When all other alternative dispute methods do not work or fail to resolve the

dispute, arbitration is the most formal of the ADR techniques. Arbitration is defined as

the process by which parties to a dispute voluntarily agree to submit their differences to

the judgment of an impartial mediation panel for resolution [ CITATION textbook \l

1033 ]. Lawyers represent both parties and neither parties have gainful control over the

process. Although arbitration still offers a potential expedited and cost-effective means to

resolve the dispute when compared to litigation by shorting the lengthy process of a trial

there is still financial and use of autonomy loss in this process. In the legal system delay

is one of the most significant issues at hand leading to increased caseloads causing

disputes such as malpractice claims to be resolved at a much slower rate [CITATION

farmer \l 1033 ]. The outcome of arbitration is usually final for that reason specifically it

spares the patient and physician the process of a lengthy trial once a decision has been

rendered [ CITATION farmer \l 1033 ]. One major disadvantage of utilizing arbitration is

the risk of a biased arbitrator being involved in the resolution process and siding with one

party more than the other in the decision-making process [ CITATION farmer \l 1033 ].

The Benefits and Disadvantages of ADR in Malpractice Claims

Benefits

As stated frequently throughout this paper one of the critical benefits of ADR no

matter which technique you choose is its ability to save money when compared to the

cost of litigation [ CITATION sustek \l 1033 ]. ADR is a time-saving method, at times

going before a jury may prove to be the only option, but whenever possible, the use of an

alternative dispute resolution such as arbitration can save both parties the headache of a

lengthy trial. Mediation is a technique that provides an avenue for compromise and
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improved satisfaction for both parties increases the chances of a successful resolution. A

critical outcome of some of the simplistic ADR such as an apology, negotiation, or

mediation is the ability to maintain the physician-patient relationship [ CITATION sustek

\l 1033 ].

Disadvantages

The right to a fair trial should always be the goal whether in court or out of court.

It is mere human decency. ADR is an effective method to resolve conflict when both

parties agree however it is never binding and at any point, an individual should have the

right to a trial. In most ADR the plaintiff is not awarded the same compensation that

would have been given in litigation due to the settlement being based off compromise.

When a party is unwavering of their version of how the events occurred ADR may not be

a satisfactory method to resolve the dispute.

Conclusion

Alternative dispute resolution is shaped through morals, beliefs, rituals, religions,

team cohesion, and compromise. When effectively resolving the dispute of malpractice

claims the goal should always to ensure that both parties are heard, and the solution

addresses the issue. An early apology is the simplest but impactful means of resolving

disputes in an alternative manner. In most situations, the accuser isn’t motivated by a

financial gain, but a timely and honest clarification of the situation [ CITATION sustek \l

1033 ]. An early apology and act of compassion while working towards measure to

prevent the reoccurrence of the mistake in the future could be all that the accuser requires

to resolve the dispute without leading to litigation. In the book of Micah chapter 7 verses

18-19 “Who is a God like unto thee, that pardoneth iniquity and passeth by the
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transgressions of the remnant of his heritage? He retaineth not his anger forever,

because of he delighteth in mercy. He will turn again, he will have compassion upon us;

he will subdue our iniquities; and thou wilt cast all their sins into the depths of the sea.”

Reminds us that forgiveness is the way of life and it should be the root of all dispute or

conflict resolution which is why I would recommend an early apology because it makes

forgiveness a little bit easier. Based on research the last line of defense considered when

resolving conflict should be arbitration. Arbitration does reduce the delay in the legal

process, but due to the formality and cost when hiring lawyers, this ADR would be

recommended as a last resort. ADR is a process that when used properly can benefit all

parties in many situations when litigation is not necessary. It saves money, time, and the

reputations of providers while providing satisfactory outcomes for both parties.

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References

Cheng, F. K. (2015). Mediation skills for conflict resolution in nursing education. Nurse

Education in Practice, 15(4), 310-313. doi:10.1016/j.nepr.2015.02.005

Farmer, M. B. (2012). Mandatory and fair-a better system of mandatory arbitration. The

Yale Law Journal, 121, 2346-2394.

Hann, D., & Nash, D. (2016). Workplace conflict resolution in Wales: The unexpected

prevalence of alternative dispute resolution. Economic and Industrial Democracy,

1-27. doi:10.1177/0143831X16663013

Joszt, L. (2017, June 30). 5 aspects of medical malpractices in the united states. Retrieved

from https://www.ajmc.com/newsroom/5-aspects-of-medical-malpractice-in-the-

united-states

Parijs, P. V. (2012). What makes a good compromise? Government and Opposition,

47(3), 466-480. doi:10.2307/26350276

Pozgar, G. D. (2019). Legal aspects of health care administration. Burlington, MA: Jones

& Bartlett Publisher.

Sustek, P., & Holcapek, T. (2017). Alternative dispute resolution in medical malpractices

disputes. 233-242. Retrieved from http://ezproxy.liberty.edu/login?

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