What Do Mediation and Palliative Care Have in Common?

The more I learn about palliative care, the more I’m persuaded it’s a lot like mediation.

• Palliative care allows terminally ill patients to spend their last months (or less) without intensive and often intrusive medical interventions.
• Mediation enables parties to settle their dispute without interminable and costly trials.

Neither the mediator nor the palliative care physician is a “fixer.”

• Decision-making is left to the individual – be she a terminally or seriously ill patient (or family members) or parties to a case. A terminally ill patient who opts for palliative care implicitly agrees to take responsibility for how they wish to spend their remaining days.
• When parties mediate, they become the decision-makers in the case and take some responsibility for moving toward resolution.

Is it fair to compare a trial in which neither side is sure of the outcome to an ICU for terminally ill persons near their life’s end?

• If parties to a case opt for mediation, they – at least – have some control over the outcome.
• Similarly, if treatment in an ICU offers little but the hope that a terminally ill patient may live somewhat longer, the patient may opt for care that offers comfort and some semblance of a better quality of life, even as death nears.

Would I compare the dearth of palliative care training in our nation’s medical schools to the little emphasis given to training law students in alternative dispute resolution? Yes.

• In The Best Care Possible*, for example, Dr. Ira Byock notes that most residents who come to Dartmouth-Hitchcock Medical Center (where he’s a faculty member) feel that they have not been adequately prepared to provide end-of-life care.
• In my Internet survey of the curricula of 6 law schools in the DC metropolitan area, I found only 3 offering courses in Alternative Dispute Resolution.

Would I compare the propensity of some medical professionals to try every available means to prolong the lives of terminally ill patients with some attorneys who drag their clients through lengthy, costly and emotionally draining trials? I think so.

Let’s not blame only the doctors or the lawyers.

• Dr. Paul Marik of the Sentara Norfolk General Hospital in Virginia was recently quoted in The Washington Post+ as stating: ”Americans not only don’t want to die, they are unwilling to accept the reality of death.”
• And how often do litigants in a trial insist on “going for broke” before the court rather than attempting to resolve their issues in mediation?

What are your thoughts as to whether this is a valid comparison?

* Penguin Books, 2012

+ December 12, 2014

 

Sig Cohen

Beyond Dispute Associates

202-359-6141

www.toughconversations.net

sigcohen@toughconversations.net

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