The Litigation vs. Mediation Paths

The resolution of disputes through the venues of adjudication is often focused on out-maneuvering the opponent. When it comes to litigation, the path is only wide enough for one winner. Statute and jurisprudence significantly limit the range of resolutions that are available (even when there is a winner). The mediation path though, is something altogether different. Communication is the key to successful mediation, which is facilitated, rather than inhibited, by the rules.


"Good Faith" Mediation

Parties in a mediated conflict are expected to participate in "good faith." This phrase has a variety of legal definitions, but it basically means that disputing parties do not simply "go through the motions" or attempt to manipulate the mediation process to serve an ulterior agenda. To some degree, the mediator has responsibility to diplomatically police the situation to avoid abuse of the integrity and trust.


Who Pays for Mediation?

Mediation financing is about having "skin in the game." When both disputing parties pay proportionally, there is automatically some incentive to reach a satisfactory conclusion. Often the party with the greater resources is expected to pay more than half of the fee. Sometimes, the circumstances of certain mediations carry the expectation that one of the parties pay the entire cost of mediation. This is an issue that should be settled between the parties before engaging mediation services. If not, it could put the mediator in an awkward position easily interpreted as favoritism. Diverging from the 50/50 split of mediation costs, unfortunately, brings the parties closer to an undesirable unilateral choice of mediator.


A Cooperative Conflict

Mediation is about cooperation, because the warring parties share a shuttling diplomat. The creativity and collaboration of the participants is the only limit on resolutions. Compromise dictates some give and take, because, like it or not, you cannot make an omelet without breaking some eggs. The power of the parties in the mediation process (not available along the litigation path) is to transform intractable problems into opportunities. Mediation has the power to move from impasse to transformation. Unlike litigation, mediation does not get to that point by leaving a lot of blood on the courtroom floor.


The Ethical High Ground

Above all, a mediator must be committed to the ethical high ground. A general ethics code for mediators can be drawn from many resources, mostly mediation organizations. The Texas Supreme Court has used these resources to come up with "Ethical Guidelines for Mediators" which have been in effect since 2005.


Rules for Mediation

Any orderly process has its goals and its rules. The "ground rules" for mediation are a recipe for the parties to follow in order to enhance their opportunity for dispute resolution. It's the removal of chaos from the communication that allows the parties to share a magnificent soufflé instead of a plate of rubbery scrambled eggs. The main ingredients for mediation include specific rules on:

• The Role of Legal Counsel for the Parties

• How Mediation Can Be Terminated

Getting Permission

Mediators have a lot of power to influence deal making. They must use a lot of vigilance to balance that power. There are many strategies in the mediator toolkit to get parties to "cut to the chase", but the ethical mediator obtains permission of all the disputing parties before using any of those tools. That makes it a great alternative to litigation.


Mandatory Mediations

One of the distinguishing features of mediation is that the facts are never the conclusions of an adjudicator. The resolutions are only by the agreement of the parties, so no one will force a party to resolve the conflict by the end of mediation. Generally, mediations are voluntary and conceived by agreement of the parties. In some types of court cases, mediations are part of the process required before the parties are allowed to take up valuable court time. There are myriad other situations where mediation is a required process. Call Lee Bukstein, Attorney at Law in Austin, Texas, to learn more.


Healthcare Professionals Peer Review Process and Mediation

How can a statutory and regulatory requirement be both mandatory and discretionary at the same time? I offer this bit of analysis toward mediation being considered or demanded as a possible avenue in resolving a medical peer review case.


Texas Medical Practice Act, Sec. 151.002(7) provides the definition of “medical peer review” or “professional review action” as the evaluation of medical and health care services, including evaluation of the qualifications and professional conduct of professional health care practitioners and of patient care provided by those practitioners. “Medical Peer Review” includes evaluation of the: merits of a complaint; accuracy of a diagnosis; quality of the care provided by a health care practitioner; report made to a medical peer review committee concerning activities under the committee’s review authority; report made by a medical peer review committee to another committee or to the board as permitted or required by law; and implementation of the duties of a medical peer review committee by a member, agent, or employee of the committee.


Although the Medical Practice Act is directed toward physicians, Texas Occupations Code, Sec. 303.001(5) identifies “peer review” as the evaluation of nursing services, the qualifications of a nurse, the quality of patient care rendered by a ruse, and the merits of a complaint concerning a nurse or nursing care through a determination or recommendation regarding a complaint. So, the concept of peer review seems be consistent across the board for all healthcare practitioners.


In order to advance the cause of patient safety and welfare, the peer review process was placed in a protected status by federal law and state law . Essentially, if the peer review process is reasonable and fair, the colleagues of the practitioner under scrutiny and the organizations in which they work are granted immunity from the career consequences of the process and actions taken as a result of a peer review.


Okay, so it’s a lot more complicated than just a few definitions, but Texas jurisprudence has cast a healthcare practitioner’s fight against those peer review actions and consequences as being against the odds . While the exposure of healthcare organizations engaging in peer review to a financial hit is limited, it is not ironclad. This article, however, is not about those chinks in the peer review armor. This article is about the role of mediation in the peer review process.


The Medical Practice Act does not directly speak to a peer review mediation as a “requirement.” The Medical Practice Act and Board Rules do make violation of a federal law or state law a violation of a physician’s obligations under that scheme of regulation. The Texas Nursing Practice Act and Board of Nursing Rules include similar obligations to comply with federal law and state law. While there is a stated immunity in federal law and state law from “monetary damages” and “civil liability”, those immunities do not put a healthcare professional participating in peer review out of the reach of administrative law liability and professional licensing liability. Simply put, if a healthcare professional managing the peer review process in a role other than the subject of that process violates a statutory or regulatory requirement to take a peer review action through a mediation process on the way to becoming final, that healthcare professional may put that peer review process at risk due to that violation.


You may agree or disagree of such a risk created by statute or regulation, but the mandatory/discretionary mediation requirement is there.


Start the analysis at the “hospital” level of organization of healthcare professionals who engage in peer review on a routine basis. The Texas Health and Safety Code, Subtitle B, Licensing of Health Facilities, Chapter 241.101(c), Hospitals, states that the process of modification or revocation of medical staff membership and privileges must afford each physician, podiatrist and dentist procedural due process that meets the requirements of 42 U.S.C. Section 11101 et seq. as amended. In addition to that considerable obligation for the hospital, Chapter 241.101(d) adds the note that is the well-spring of the mediation predicament. The healthcare practitioner decides whether the hospital must participate in mediation (as described in Section 154.002 of the Texas Civil Practices and Remedies Code) within a reasonable amount of time. This law may be reinforced by provisions of medical staff or hospital bylaws or other protocols. Even without the contractual possibilities added on, this law provides a restricted pathway through the courthouse door by stating,


“(e) Subsection (d) does not authorize a cause of action by a physician, podiatrist, or dentist against the hospital other than an action to require a hospital to participate in mediation.”


Importantly, this rule for physicians, podiatrists and dentists makes the hospital responsible for compliance with a “procedural due process” requirement for peer review without much of a description of what that includes. It is safe to say that the rule does not allow a hospital to dictate a restrictive peer review process that would be deficient under common understandings of the basic requirements of due process and as those common understandings are applied to HCQIA provisions.


Physician assistants and advanced practice nurses are not provided with a similar right to either due process or mediation by either statute or rule. Section 124.105)(c) and Rule 133.41 seems to limit mid-level healthcare practitioners to the procedural rights to provide fairness of process, as determined by the governing body of the hospital. The bottom-line is that mediation is an option that depends on the language of by-laws and protocols and whether the mid-level has been granted clinical privileges or is just an employee. Sec. 241.105(c) and 241.105(f)


The curious development is outside of the Texas Health Facilities Licensing Act in the Texas Health and Safety Code. The process of peer review for nurses is very well-defined (perhaps, somewhat redundantly) in 22 TAC Part 11, Section 217.19 and 217.20.

Although hospital licensing law does not state a requirement for mediation during nurse peer review, the regulations of the Texas Board of Nursing provide a detailed description of what must go into peer review due process. Nursing Board Rules 217.19 and 217.20 echo clear definitions for the terms “peer review” along with “bad faith” and “malice.” Although the Nursing Practice Act provides a door to the courthouse that leapfrogs HQCIA immunity against monetary damages when a nurse can show that retaliation was part of the motivation for peer review actions, there is no mention of the mediation pathway, either recommended or required.


Therefore, credentialed mid-levels are statutorily entitled to neither mediation nor expressed minimums of procedure in the process of peer review. Uncredentialed employee advance practice nurses, at least have a shot at the peer review due process requirements for nurses. Otherwise, mid-levels and nurses must depend on by-laws and protocols for any contractual requirement for mediation. Without a statutory/regulatory requirement or a contractual requirement, a mediation in the peer review process for a healthcare practitioner is just a good idea on many levels with relatively little downside for any party. It’s just not a given.


To have any reasonable effect, a mediation must be offered and held sometime after the complaint and documentation are provided to the healthcare practitioner and sometime before the final action report of the hospital executive committee. If mediation is not offered and held during this time period, the healthcare practitioner entitled by statute or contract to mediation has every right to file a lawsuit and request a Temporary Restraining Order prohibiting the hospital from taking any action on a final action determination, such as reporting it to the National Physician Data Base, and possibly requiring the hospital to re-do the peer review process regarding due process deficiencies. It is possible that a judge might consider objections to mediation at the time of the TRO hearing, but the prospects for skipping over the mediation step for physicians, podiatrists and dentists are scant due to Texas hospital law’s discretionary language for the health care practitioner and the compulsory language for the hospital.


Nothing is said in the hospital law about who pays the reasonable fees for a mediator (the “impartial third party”) with a role in the peer review process, but the Alternative Dispute Resolution Procedures, Texas Civil Practices and Remedies Code, Sec. 154.054 states that the court ordering mediation either allows the parties to the dispute to agree to the method of payment or the fees are taxed as other costs of suit. Splitting the bill down the middle is the hallmark for mediating parties to have equal skin in the game of mediation, but a judge is free to look at the equities and apportion the tab differently.


The Texas Department of Health and Human Services has issued rules that reiterate the hospital law mediation requirement as discretionary for the healthcare practitioner and mandatory for the healthcare organization. While the TDHHS does not have authority to create any cause of action, this reiteration of the underlying statutory authority does open up the door to administrative action to the detriment of the hospital through an administrative complaint pursuant to Subchapter G, Enforcement, Rule 133.21. Thus, a failure to meet the mediation requirement conceivably could put the hospital’s license on the line, or at least subject the hospital to censure and administrative penalties. Additionally, the Medical Practice Act only provides a measure of insulation from “civil liability” to the staff participating in the peer review. “Civil liability” is not likely to be construed to be “administrative liability.” Therefore, a failure to engage in mediation for peer review may expose the professional members of the peer review committee to a complaint to a professional licensing board.


Ten years ago, the Texas Medical Board professed that it was outside of their jurisdiction look into the circumstances of Dr. Poliner’s experience with alleged fraudulent peer review actions allegedly perpetrated by other physicians. The Medical Practice Act, in establishing immunity from monetary damages and other forms of civil liability, seems to recognize that peer review is part and parcel of the practice of medicine. Ten years after Dr. Poliner’s case, physician misconduct incorporated in malice and bad faith may be viewed as professional misconduct, a matter of regulatory concern and discretion distinctly different than civil liability.