In many scenarios requesting a consult, although some options may be clearly ruled out, the contest appears to be between options that cannot be decisively defended or defeated on rational or empirical grounds. One side, e.g., says the tiniest chance for survival must be pursued at all costs, while the other insists that some qualities of life are worse than death. See Morreim, E. H., “Moral Distress and Prospects for Closure,” American Journal of Bioethics 15, no. 1 (2015): 38–40. Engelhardt described such situations long ago: No single viewpoint can definitively command the moral high ground, and so our challenge is to resolve the conflict procedurally or, as he put it, without resort to force. Engelhardt, T., The Foundations of Bioethics, 2nd ed. (New York: Oxford University Press, 1996). See also Bergman, E., “Surmounting Elusive Barriers: The Case for Bioethics Mediation,” Journal of Clinical Ethics 24, no. 1 (2013): 11–24; Fiester, A., “Ill-Placed Democracy: Ethics Consultations and the Moral Status of Voting,” Journal of Clinical Ethics 22, no. 4 (2011): 363–72.Google Scholar

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Priming refers to a phenomenon in which introducing one stimulus – perhaps a word of suggestion – can influence later responses. In mediation, the mediator might use certain words or concepts early, in hopes that the people at the table will be more receptive, later, to options involving those concepts. Here, the idea that it would “take a village” to care for Benny helped the families to adopt the idea that they should collaborate with each other in the discharge planning process and in caring for Benny long term. See Gladwell, M., Blink (New York: Back Bay Books, 2007): At 53–58, 76.Google Scholar

Managing expectations involves preparing people for what to expect, so that the described event(s) will be familiar when they come to pass. Unpleasant or unexpected developments can quickly derail progress, often by disrupting parties' trust.Google Scholar

When people are assured that their concerns, feelings, activities are shared by many other people – that they are normal – the associated level of emotionality can be diffused.Google Scholar

Several months later, a brief follow up with Dr. Goode indicated that the parents' arrangement continued to work reasonably well, and that Benny was able to exhibit social smiling – encouraging and gratifying for both his parents.Google Scholar

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One noteworthy example of informal conflict resolution for employees comes from M.D. Anderson Cancer Center's Ombuds Office. This particular ombuds service focuses on conflicts among employees, providing a nonthreatening avenue for addressing issues that might otherwise become toxic and destructive. See, e.g., MD Anderson Cancer Center, “About Us: Resolution Pathways,” available at <http://www.mdanderson.org/about-us/for-employees/employee-resources/ombuds-office/resolution-pathways/ombuds-office-resolution-pathways.html> and MD Anderson Cancer Center, “About Us: Ombuds,” available at <http://www.mdanderson.org/about-us/for-employees/employee-resources/ombuds-office/index.html> (both last visited November 18, 2015). and MD Anderson Cancer Center, “About Us: Ombuds,” available at (both last visited November 18, 2015).' href=https://scholar.google.com/scholar?q=One+noteworthy+example+of+informal+conflict+resolution+for+employees+comes+from+M.D.+Anderson+Cancer+Center's+Ombuds+Office.+This+particular+ombuds+service+focuses+on+conflicts+among+employees,+providing+a+nonthreatening+avenue+for+addressing+issues+that+might+otherwise+become+toxic+and+destructive.+See,+e.g.,+MD+Anderson+Cancer+Center,+“About+Us:+Resolution+Pathways,”+available+at++and+MD+Anderson+Cancer+Center,+“About+Us:+Ombuds,”+available+at++(both+last+visited+November+18,+2015).>Google Scholar

For a detailed story of such conflicts and the processes by which they might be addressed, see E. H. “Morreim In-House Conflict Resolution Processes: Health Lawyers as Problem-Solvers,” The Health Lawyer 25, no. 3 (2014): 10–14; Morreim, E. H., “Conflict Resolution in Health Care,” Connections 18, no. 1 (2014): 28–32.Google Scholar

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See Scott, Gerardi, , supra note 20; see also Conard, Reister Franklin, , supra note 20.Google Scholar

“ADR” stands for “alternative dispute resolution.”Google Scholar

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By analogy, it has been proposed that ethics committees could be the home-base for other kinds of “communication consult services,” such as coaching physicians and others before they disclose errors and adverse outcomes to patients and families. See Truog, R. Browning, D. Johnson, J. Gallagher, T., Talking with Patients and Families about Error (Baltimore: Johns Hopkins University Press, 2011): At 61. See also Bosslet and Pope et al., supra note 15.Google Scholar

See, e.g., Dubler, Liebman, , supra note 3; Dubler, supra note 4.Google Scholar

See Bergman, , supra note 1; Fiester, A., “Ill-Placed Democracy: Ethics Consultations and the Moral Status of Voting,” Journal of Clinical Ethics 22, no. 4 (2011): 363–372; Fiester, A., “The Failure of the Consult Model: Why ‘Mediation’ Should Replace ‘Consultation,”’ American Journal of Bioethics 7, no. 2 (2007): 31–32; Howe, E., “How Mediation (and Other) Approaches May Improve Ethics Consultants' Outcomes,” Journal of Clinical Ethics 22, no. 4 (2011): 299–309.Google Scholar

Even with bona fide agreement, changing circumstances or new information can still render an agreement nonfunctional.Google Scholar

See Morreim, , supra note 24.Google Scholar

Bioethics mediation, as traditionally framed, generally concerns patient care decisions and focuses especially on life-and death situations: “[a]ll participants in a bioethics mediation have a common interest in the well-being of the patient.” See Dubler, , supra note 4, at 187. “A presumptive common concern for the patient's best interests distinguishes bioethics mediation from conflicts in which opposing parties have disparate and irreconcilable interests,” says Bergman, , in supra note 1.Google Scholar

See Dubler, , supra note 4, at 178.Google Scholar

Id., at 187.Google Scholar

See Dubler, , supra note 4, at 181, #5.Google Scholar

Dubler, N., “Commentary on Bergman: ‘Yes… But’,” Journal of Clinical Ethics 24, no. 1 (2013): 25–31, at 28.Google Scholar

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If someone's values call for a solution that is ethically so dubious as to be illegal, the mediator can invite the appropriate voice to introduce that legal reality, as discussed above.Google Scholar

See Dubler, , supra note 4, at 187.Google Scholar

Admittedly, in some instances patients or surrogates will withdraw from an agreement not so much to express honest evolution of thought, as to manipulate providers. This is not the forum for discussing such cases; suffice it to say the mediator needs to inquire carefully and avoid being coopted where subterfuge is afoot. If the mediator has built a reasonable level of trust, s/he should usually be able to discern reasonably well which is which.Google Scholar

As Lee Jay Berman observes, “I define the mediator's proposal as the exact point in time where the mediator ran out of skills.” See Mehta, S. G., “The Mediator's Proposal Round-table: The Good, the Bad, The Ugly.” Mediation Matters (blog), January 19, 2010, available at <http://stevemehta.wordpress.com/2010/01/19/the-mediators-proposal-roundtable-the-good-the-bad-the-ugly/> (last visited November 19, 2015). (last visited November 19, 2015).' href=https://scholar.google.com/scholar?q=As+Lee+Jay+Berman+observes,+“I+define+the+mediator's+proposal+as+the+exact+point+in+time+where+the+mediator+ran+out+of+skills.”+See+Mehta,+S.+G.,+“The+Mediator's+Proposal+Round-table:+The+Good,+the+Bad,+The+Ugly.”+Mediation+Matters+(blog),+January+19,+2010,+available+at++(last+visited+November+19,+2015).>Google Scholar

“Adoption of bioethics mediation as a primary clinical dispute resolution process, available at the request of patients' families, surrogates, and caregivers, would dramatically enhance the manner in which hospitals address conflict. Reliance on bioethics consultation by those who are expert in bioethics principles, for imposition of juridically based decisions on individuals in crisis, premised on questionably superior access to moral judgments, has been nothing short of ‘scandalous’ and an embarrassment to the healthcare system.78 Patients and their families, in particular, are entitled to a nonthreatening, inclusive forum in which they can be heard and respected for their relevant competencies.” Bergman, E., “Surmounting Elusive Barriers: The Case for Bioethics Mediation,” Journal of Clinical Ethics 24, no. 1 (2013): 11–24, at 21.Google Scholar

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As a “Rule-31 listed mediator” in the state of Tennessee I have the opportunity to provide mediations on a regular basis for local courts, and have particularly focused on civil cases in which family have sued family over real estate, unpaid debt, return of property and the like. The emotional intensity of these cases is often comparable to that found in healthcare, and thus provides the kinds of opportunities described.Google Scholar

Advanced training in healthcare mediation is offered, e.g., by the Center for Conflict Resolution in Healthcare LLC (www.healthcare-mediation.net; last visited December 8, 2015), American Health Lawyers Association (healthlawyers.org), and the Penn Department of Medical Ethics (http://medicalethics.med.upenn.edu; last visited December 8, 2015).Google Scholar