Mediation at the End of Life: The Limits of the Talking Cure

I posted a copy of Mediation at the End of Life: The Limits of the Talking Curehere . [23 Ohio St. J. Disp. Resol. 143-95] Here is the abstract:

Mediation has been touted as the magic Band-Aid to solve end-of-life conflicts. When families and health care providers clash at the end of life, bioethicists and conflict theorists alike have seized upon mediation as the perfect procedural balm. Dissonant values, tragic choices, and roiling grief and loss would be confronted, managed, and soothed during the emotional alchemy of the mediation process. But what is happening in a significant subset of end-of-life disputes is not mediation as we traditionally understand it. Mediation's allure stems from its promise to excavate underlying needs and interests, identify common ground, and push disputants toward more moderate, creative, and mutually satisfying outcomes. But in the growing number of intractable medical futility cases, there is no movement to middle ground. Rather, we have a conversation that leads to a predictable outcome. The provider backs down, and the surrogate gets the treatment that she wants.

Mediation's failure was inevitable. It cannot succeed in the shadow of current health care decisions law that gives surrogates so much power. To make mediation work for these cases, we must equalize bargaining power by giving providers a clearly-defined statutory safe harbor to unilaterally refuse requests for inappropriate treatment.

This is a symposium piece I prepared with Ellen Waldman. The other articles in the 2007 Symposium Issue Alternative Dispute Resolution Strategies in End-of-Life Decisions are

• Carol B. Liebman, Introduction to the symposium issue on alternative dispute resolution strategies in end-of-life decisions
• Armand H. Matheny Antommaria, Alternative dispute resolution and pediatric clinical ethics consultation: why the limits of ethical expertise and the indeterminacy of the best interests standard favor mediation
• Matthew Bierlein, Seeing the face of the patient: considerations in applying bioethics mediation to non-competent end-of-life decisionmaking
• Sharon Douglas, Conflict resolution at end-of-life relative to life support
• Debra Gerardi, The emerging culture of health care: improving end-of-life care through collaboration and conflict engagement among health care professionals