Methods of Conflict Resolution at the Bedside

George J. Agich (2001) has offered an erudite discussion of method in ethics consultation. He has not, however, focused on the role of the ethics consultant in the resolution of conflict. It has been my experience over the nearly 20 years I have been doing bedside ethics consultations as an individual consultant that the majority of ethics consultations are requested for assistance in the resolution of conflict about further treatment. But what method should the consultant use in conflict resolution? Some have proposed that the consultant should remain neutral and merely facilitate the process. Others have proposed that the role should be to make a decision about which party is morally correct. The basic question, then, is whether ethics consultation is about process or substance.

deLeon and I retrospectively analyzed the methods we used in conflict resolution and tried to see if our methods fit the classical methods of alternative dispute resolution (ADR) (Orr and deLeon 2000). Traditionally, ADR includes three different methods: negotiation, mediation, and arbitration. The third party whose job is to help resolve the conflict plays a very different role in these three methods.

In negotiation the third party enters the conflict at the invitation of one of the parties with the express purpose of advancing that party's cause or position. The negotiator is an advocate and is clearly partisan. The goal is to gain a settlement to the disagreement that is favorable to the person issuing the invitation.

Mediation is the use of a neutral third party to help those in conflict find and agree upon an acceptable resolution by providing a process for reaching settlement. The mediator is a nonpartisan catalyst who is to facilitate discussion so that the two parties can reach their own resolution. He or she can pose questions, clarify answers, reframe issues, express empathy or look for creative options for resolution, but assiduously avoids taking sides.

Arbitration is a method of conflict resolution that is designed as a modified tort system. It remains an adversarial endeavor but avoids the time and expense of litigation. An arbitrator is invited by both parties to act as judge and is expected to render an opinion about which of the disagreeing parties should prevail. He or she begins the process unbiased in order to reach a conclusion based on the merits of the case.

These three classical roles in ADR differ in at least two ways. First, they differ in the matter of partiality versus impartiality. The negotiator enters the process partisan and is expected to maintain that position throughout. The mediator begins impartial and is expected to remain both fair and unbiased. The arbitrator is impartial at the outset but is expected to make a judgment about which side will prevail.

Second, the three methods differ in regard to belief in and adherence to standards. The arbitrator is clearly asked to evaluate the situation and render a judgment based on some agreed-upon standards aboutthe substance of the issue. The mediator is expected to suppress personal opinion and facilitate the process, but does insist upon standards of process, such as giving each party an equal hearing, preventing interruptions, and steering the two parties to an ethically responsible agreement. The negotiator, on the other hand, is able to apply personal standards about whether to agree to represent the interests of one party, but once entering that agreement is expected to use all measures to accomplish their joined goal.

In the article cited above, deLeon and I described and analyzed seven cases in which we were invited as ethics consultants to assist with conflict resolution. In some cases we clearly acted as a negotiator by trying to assist one party, either the professionals or the patient/family, to achieve a reasonable and ethically justifiable goal. In other cases we mediated the dispute between the two parties and helped themto reach a mutually agreeable solution. In some cases we served as an arbitrator by determining that one side clearly had more moral weight than the other based on principles, standards, and precedents. In still other cases, our role did not clearly fall...