Bioethics Mediation: Bridging the Gap between Mediation & Ethics Consultation Alan Sanders, PhD

1. Bioethics Mediation: Bridging the Gap between Mediation & Ethics Consultation Alan Sanders, PhD Director, Ethics Catholic Health East

2. Mr. Tallman • Mr. Tallman is a 82 year-old gentlemen with dementia admitted to the hospital from a nursing home for respiratory failure. Reportedly, upon admittance he is heard saying that he wants to go back to the home. Soon after admission he is intubated. Now it is time to decide whether he should receive a trach and peg, and be sent to an L-TAC, or, whether treatment should be decelerated. The family is favoring a trach and peg. You are called because some of the nurses believe anything short of deceleration of treatment goes against Mr. Tallman’s wishes.

3. What is a “consultation” in Medicine? • Expert Review & Recommendation • This is an analytical model based on knowledge • Is this model always compatible with an “Ethics Consultation”? • Why do healthcare professionals consult ethics?

4. The ADR Continuum Decisions/Actions Decisions/Actions controlled by parties controlled by others | | | | | | Negotiation |Ombudsing | | Arbitration Conciliation | Adjudication MEDIATION Increasing formality 4 4

5. Third-party Neutral • Runs the meeting and/or facilitates numerous and various stakeholders • Manages people & emotions • Puts stakeholders “on notice”, often elicits a “good face” • Separates people from the problem • Helps focus on interests rather than positions (true thoughts and feelings rather than ego) • Represents various viewpoints to others

6. Evolution of “Futility” • 3rd Generation of Futility • Examine and enhance communication with the patient or appropriate surrogate • Employ 4 steps of the principled negotiation • Separate people from the problem • Focus on interests rather than positions • Generate options before settling on an agreement • Insist that the agreement be based on objective criteria • If Dispute is intractable to negotiation • Provide support to family and caregivers • Burns & Truog, “Futility: A Concept in Evolution”, CHEST, 2007, 132: 1987-1993.

7. American Society for Bioethics & Humanities (ASBH) • Process Skills • Facilitate meetings • Build consensus • Ability to utilize structure and resources to implement the chosen option • Elicit feedback • Interpersonal Skills • Listen well • Communicate respect, support, and empathy • Represent views of various parties to others • Recognize and resolve barriers to communication • Enable parties to communicate effectively and be heard by other parties

8. Mediation Ethics Consultation • Introduction and ground rules • Opening statements (uninterrupted) • Discussion (Caucus possibly included) • Negotiation • Agreement • Gather Facts • Clarify Information • Discuss and understand differences • Make a recommendation, or, build consensus and a plan of action

9. Examples of mediation outside of Health Care • Property disputes • Financial disagreements • Contract discrepancies • Divorce • Other social issues

10. Mr. Tallman • Mr. Tallman is a 82 year-old gentlemen with dementia admitted to the hospital from a nursing home for respiratory failure. Reportedly, upon admittance he is heard saying that he wants to go back to the home. Soon after admission he is intubated. Now it is time to decide whether he should receive a trach and peg, and be sent to an L-TAC, or, whether treatment should be decelerated. The family is favoring a trach and peg. You are called because some of the nurses believe anything short of deceleration of treatment goes against Mr. Tallman’s wishes.

11. Summarizing Paraphrasing (not parroting) Framing or Reframing Checking In Brainstorming Bargaining Tools of Mediation:Active & Reflecting Listening

12. Layers of Listening • Content • Emotions • Intentions • Identity • Moral Psychology • “I can’t kill my father”, “Give him every fighting chance,”…

13. Questions are Powerful Tools • Closed questions – specific information, short answer • Open-ended questions – invites the speaker to expand, i.e. “Tell me more.” • Circular questions – open question inviting speaker to reflect back on a different time, takes attention away from immediate conflict • Leading questions – include the answer the questioner seeks, i.e. “Do you think that….?”

14. Defusing Techniques • Stay calm even if you do not feel calm. • Use a soft tone of voice. • Do not argue. • Firmly, gently set limits. • Stop interrupters. • Help wounded parties save face. • Divert comments toward you. • Move toward solution: What can we do?

15. Know Thyself! • Are you aware of your own reactions, biases, values and goals and how they may affect the mediation? • Are you aware of your own needs and issues, and can you separate them from the parties’? • Are you aware of what “triggers” your own emotion? When and which ones?

16. Considerations • Not all ethics consults require mediation • Skill-set applicable to other areas • Outcomes, outcomes, outcomes • Follow-up plans • Education, support • One person, two, team? • Time • What do you represent in the meeting? • Physician, nurse, administrator • The role of “facts”

17. Resources • Bioethics Mediation: A Guide to Shaping Shared Solutions • Nancy N. Dubler & Carol B. Liebman • Crucial Conversations: Tools for Talking when the Stakes are High • Kerry Patterson, Joseph Grenny, Ron McMillan, Al Switzler • Gracious Space: A Practical Guide for Working Better Together • Patricia M. Hughes