The United States legal system was developed as an alternative to vigilantism and violent resolutions of disputes. Even though our legal system is one of the best in the world, access to justice has become nearly impossible for many people due to cost, stress, and time. While in certain situations it is necessary to have your day in court, it is also important to know there are alternatives to this expensive, stressful, and protracted forum.
For example, imagine a nurse practitioner (NP) is being harassed on the job by a person in a position of authority, such as a politically well connected collaborating physician. In this situation, the balance of power may not be equitable and the NP may be vulnerable to adverse employment actions for bringing the harassment issue to light. Mediation may be appropriate if everyone agrees to a nonbiased mediator with healthcare experience. The mediator can work with everyone involved to define what is and is not acceptable conduct in the work setting and obtain the agreement in writing to be signed by everyone involved. The mediator can also help the parties develop a procedure in the event of future problems. This would be a nonadversarial mutual resolution to a problem.
Alternative dispute resolution (ADR) encompasses a broad range of alternative problem-solving methods, many of which have been used throughout history and have significantly reemerged in the United States over the past 25 years.
Avenues of ADR
Methods of ADR include:
* negotiation
* mediation
* settlement conference
* early neutral evaluation
* mini-trial
* summary jury trial
* mediations-arbitration
* arbitration.
Most states have ADR acts, which explicitly authorize various forms of ADR and provide certain protections not otherwise available. The statutes impart definitions of the different avenues of dispute resolution and establish the confidentiality of all mediation communication. In most situations, statues provide for judicial review as well.
ADR in Practice
NPs may find themselves involved in disputes related to their profession. One study identified 59 potential categories of legal conflict in the healthcare industry grouped into three sources of conflict:1
* NPs, other healthcare providers, and hospitals
* payers, including managed care organizations and insurers
* producers, including manufacturers of medical products and devices and pharmaceuticals.
NPs would most likely be affected by disputes that fall under the provider category. These disputes may emerge from employment issues, which include advancement, discrimination, harassment, disciplinary actions, and termination; issues relating to the Occupational Safety and Health Administration Act; or problems related to licensure, reimbursement, credentialing, and intellectual property. NPs may also encounter patient disputes resulting from lack of informed consent allegations, breach of contract, malpractice, disaffiliation by insurance companies, and government contracting.
In the next column, we will discuss the option of mediation and how this strategy can aid NPs involved in a legal situation.
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