Image courtesy of Ambro / freedigitalphotos.net

Rising healthcare costs has been a topic on everyone’s mind, particularly in light of recent legislation.  While legislators are working to make healthcare costs more manageable—both for the government and for citizens—there is still a wide range of disputes that can arise among insurance companies, doctors and patients.  These disputes, if not resolved quickly, can become unmanageable in terms of cost and time, and can quickly lead to litigation capable of ruining a physician’s reputation or financial outlook.

Whether the conflict is between a carrier and a policy holder, a physician and a patient, medical staff and family members or labor and management, healthcare mediation is a low-cost, effective way of resolving disputes that arise in the healthcare industry.  With the assistance of a third-party, neutral mediator who understands healthcare law and its implications for providers, patients and insurance companies, healthcare disputes can be dealt with confidentially and effectively, avoiding the devastating impact that litigation can bring.

Healthcare mediation can also help deal with a provider’s rising costs or potential financial losses, including staff cuts and significant changes within the insurance industry.  Dealing with conflicts before they get out of hand is vital to making sure that a provider or employer can get back to business as usual without risking reputation and loss of a positive brand image.

In fact, one of the primary reasons healthcare costs have skyrocketed so significantly is the increase in litigation resulting from healthcare-related disputes.  These disputes have reached such a critical level that doctors are forced to cut corners in their services provided just to mitigate the risk of litigation.  Healthcare mediation, on the other hand, works to help parties in dispute arrive at a fair and reasonable resolution to a healthcare dispute, avoiding litigation altogether.  Not only is this good for maintaining a positive relationships between parties involved in health care—it also helps to slowly lower the rising healthcare costs that are sweeping our nation.

Image courtesy of smokedsalmon / freedigitalphotos.net

The cost of medical malpractice in the United States has risen to over $55.6 billion a year, and as litigation increases, this figure only continues to grow.  The costs for doctors are overwhelming and have shut down smaller and privately-owned practices with the simple inability to pay the malpractice insurance premiums needed to mitigate the risk.  For this reason, legislatures across the country are considering alternative methods of dealing with the growing problem—with medical malpractice mediation being at the top of many states’ lists.

Oregon is one such state.  This past week, a bill known as Senate Bill 483 encouraging medical malpractice mediation as a form of alternative dispute resolution passed the Oregon House and is heading for the desk of Oregon Governor John Kitzhaber for his final approval.  The Oregon Senate passed the bill with a 26-3 vote and the Oregon House of Representatives passed it with an even greater margin of 55-1.  Since the governor has been an advocate for alternative solutions to medical malpractice claims within the state, he is expected to sign the bill into law.

Under this new legislation, which is anticipated to cost nearly $1.6 million for the state, patients and physicians or healthcare facilities would have the opportunity to participate in confidential mediation as a way to stave off a medical malpractice lawsuit.  The lawmakers hope that the bill’s presence will help the state avoid frivolous malpractice claims, although many experts believe that the bill’s measures do not go far enough in putting a dent in the problem.  Such experts are blaming Governor Kitzhaber for working to pass feel-good legislation that will not do any real good once in practice.

Governor Kitzhaber’s statement regarding the legislation would seem to show otherwise.  “I committed last year to bring a proposal to the Legislature to ensure that our medical liability system fits within our shared vision of health system transformation,” Kitzhaber said, “and I appreciate the Legislature supporting this effort.”

Image Courtesy of Danilo Rizzuti / freedigitalphotos.net

Landlord and tenant disputes are often slippery slopes of small issues that turn into larger ones.  What often begins as a simple failure to communicate properly can quickly escalate into distrust, misplaced blame and lawsuits that could cost more time and money than they are worth—both for the landlord and the tenant.

This is why mediation as a forum for resolving landlord /tenant disputes is usually so successful.  In many of these types of disputes, when communication is facilitated by a neutral, third party, the problem becomes less complicated than it seemed at the onset and the parties in dispute can come to an agreeable solution that will work for everyone involved.  When both sides are able to “hear each other out” and realize the reason for the miscommunication or point of contention, they are often in a better position to make a mutually respectful decision that keeps everyone happy—all without having to deal with the courts!

In landlord/ tenant mediation, a mediator who is usually an attorney well-versed in rental property law will hear all sides of the issue and facilitate a meeting between all parties involved in the dispute.  In this meeting, the mediator will guide the disputants toward a mutually beneficial goal of reaching a resolution.  The parties involved in mediation remain in full control of the proceedings, and if a resolution cannot be reached, they are free to continue to seek other avenues such as arbitration and litigation.

In many cases, however, landlord/ tenant disputes can be resolved quickly and cheaply through mediation.  Not only does mediation allow the parties to save time and money in reaching a resolution—it also provides a forum in which they can maintain a positive relationship for future business dealings.  As opposed to the bitterness and resentment that can often result from litigation, mediation provides a safe, respectful, environment that encourages communication and cooperation.

Image courtesy of David Castillo Dominici / freedigitalphotos.net

Adoption is an amazing opportunity for individuals or couples who are unable to have children of their own, or who want to be a family to a child (or children) who don’t have one.  In most cases, the adoption process can happen smoothly without the need for professional legal assistance; however, for some situations, particularly circumstances of “open adoption,” this is not always the case.

Open adoption is when the child’s birth parents are known to the adoptive parents.  While the legal rights of the birth parents are usually terminated, there are other issues to be resolved such as the frequency and length of visitation, the amount of contact between the birth parents and child, and the amount of information about the child to be exchanged.  Mediation, as a form of alternative dispute resolution (ADR), is a great forum for resolving these issues related to adoption, and more.

Particularly in cases of open adoption or foster children who are later adopted, mediation can be a helpful way to resolve issues that have arisen in the past and might still arise in the future.  Through the process of mediation with a neutral, third-party legal expert who is well-versed in adoption law, the child’s adopted parents can work together in a respectful, meaningful dialogue with the child’s biological parents to ensure that the best possible outcome for the child is maintained in the adoption proceedings.

Adoption mediation is a way to peacefully resolve any issues that could potentially arise in the adoption process and assists all parties involved (including the child being adopted) in maintaining a cooperative relationship throughout the process.  If this cooperative relationship fails, a full-scale legal battle could land everyone involved in a lengthy and expensive litigation process—something that should be avoided if at all possible.

In the process of mediation, facilitating a common goal and a respectful discourse between disputants is often the crux of the meeting’s success.

Despite the obvious political and legal restrictions surrounding mediation as a forum for resolving immigration cases, the U.S. Court of Appeals, 9th District, has reiterated its approval for the process in select circumstances. Some examples include: cases in which there have been changes in the petitioner’s situation allowing for an adjustment in status; cases in which further exploration of forms of relief are needed; or cases in which the government will not enforce a removal order unless a petitioner violates particular conditions.

In such cases, or others that might lend themselves to mediation, a mediator should first understand that mediating immigration-related disputes requires a special skillset—particularly, one that is tuned in to sociological norms. It is important that the mediator approach the process knowing that immigration mediation requires him or her to be acutely aware of nuanced stereotyping. Regardless of who is present, such nuances can and will change the course of the proceedings if left unacknowledged and unchecked.

In the process of mediation, facilitating a common goal and a respectful discourse between disputants is often the crux of the meeting’s success. However, when commonality and mutual respect is buried beneath years of socially-driven bias and conditioning, a mediator is faced with the task of moving disputants past enormous barriers of learned social behavior. While it might not seem likely that professionals—particularly, professionals working with immigrants on a regular basis—would hold such bias, assuming otherwise could seriously hamper the success of the mediation process.
In the litigation world, you can rest assured that litigators are aware of these biases when it comes to presenting their client in front of a jury. Despite America’s history being one that is built on the backs of immigrants, and despite our insistence for an egalitarian society, Americans are constrained by their own biases toward the “other.” Most of the biases are as deeply rooted as our own individual cultural heritage, and getting past them in any legal proceeding—especially in mediation—is a hurdle that shouldn’t be taken lightly.

So just how does a mediator facilitate a respectful and fruitful dialogue despite such barriers? The first step might be to focus on facts that spotlight the immigrant’s contribution to American society: this can be through learning our language and customs, avoiding government assistance, working, paying taxes, etc. While such issues might not be front and center for most clients, they are for immigration-related cases, and acknowledging these details at the onset of the mediation could do wonders in facilitating the process successfully.

In their article “Integrated Approaches to Resolving Same-Sex Dissolutions” published in Conflict Resolution Quarterly (2009, pp. 123-143), authors Frederick Hertz et al. begin with the caution that “Mediating same-sex dissolutions requires a nuanced awareness of how dramatically the legal landscape for lesbian and gay couples has changed in recent years, as well as an ability to demonstrably appreciate and respond to the complex emotional issues at stake in such mediations.”

The authors continue to address the changing legal landscape regarding same-sex unions and, inevitably, same-sex partnership dissolutions. Under this changing paradigm, mediators of same-sex partnership disputes must be aware of the enormous emotional pressure and general distrust of the legal system that same-sex couples are likely to demonstrate when entering into the mediation process. Issues such as the fact that “same-sex couples rely on implied or oral contract claims (palimony) of limited viability or community norms of often-disputed applicability” (p.123) must be understood by the mediator and must be dealt with accordingly.

Additionally, the authors discuss the fact that “further compounding these dichotomies, many lesbians and gay men conceptualize their relationships and the role of each partner differently from what is typical in straight marriages, even with the recent emergence of legally recognized unions” (p.124). In such, meditating same-sex partnership disputes adds a layer of nuanced role confusion that could hinder the mediation process if it isn’t adequately addressed at the beginning of the mediation process.

The authors then review best practices for mediating same-sex partnerships—from getting hired to documenting and finalizing the settlement. Below is a summary of their suggestions:

• Getting hired—Hertz et al. state that same-sex partners will be inclined to expect unfair and prejudiced treatment from any facet of the judicial system, including mediators. For this reason, it is not enough to simply state “I have a good friend who is gay.” Rather, “the mediator must clearly demonstrate an openness and sensitivity to the effects of discrimination as well as genuine familiarity with the issues and complexities facing the couple” (p. 137).

• Addressing issues of fairness and the law—According to the authors, a more open-textured facilitative style of mediation is most appropriate in same-sex partnership disputes. “The absence of gender roles in same-sex relationships demands an analysis of obligations within the context of the relationship itself, not framed in conventional social terms such as husband or wife” (p.139).

• Integrating the relationship narrative into the resolution process—Bringing to surface the underlying tensions that might be otherwise avoided by the parties involved could be the best option in setting up a successful mediation process. According to the authors, “Revealing these tensions should enable the parties to better understand why they are in disagreement, and hopefully see the validity of both points of view without having to agree about who is right.”

• Documenting and finalizing the settlement—Hertz et al. warn that “Because same-sex partners are not federally recognized spouses, asset transfers between partners on dissolution are not statutorily exempt from federal taxation” (p. 141). For this reason, a unique approach to handling taxes after dissolution and transfer of property must be a primary concern when finalizing the settlement.