January 2012 Volume 8 Number 5

Chair's Column: A Bridge Over Troubled Water

By David H. Johnson, Bannerman & Johnson, P.A., Albuquerque, NM

AuthorNot long ago, I had dinner with my friend Beth Schermer, who related her experiences in being recruited by then-Arizona governor Janet Napolitano to assist in bringing divergent forces together to establish a new four-year medical school in Phoenix.  The interested parties included the two major state universities, numerous hospitals and medical groups, research organizations, and foundations - all with their own vision, priorities and needs.  Multiple obstacles were encountered en route to a resolution.  To Beth the project was both challenging and exhilarating.  It led her to rethink the role of leaders and lawyers in navigating conflict and bringing many parties to a single goal, and ultimately led to her refocusing her efforts from the traditional practice of law to business consulting. 

My conversation with Beth has led me to rethink how I as a lawyer approach conflict resolution. As lawyers, we are usually engaged by individual clients to represent their interests in litigation or negotiations with other parties. Each side’s objective is usually to maximize its self-interest, and we perceive our role to be serving as the client’s instrumentality in achieving that goal. Our rules of professional responsibility are to a large extent predicated on this perceived role of the lawyer. Arbitration and mediation, as alternatives to litigation in the resolution of disputes, nonetheless operate in the same paradigm of the lawyer seeking to maximize his or her client’s position.

While the traditional role works well for most of our efforts on behalf of clients, recent changes in the way healthcare is organized, paid for and delivered raise the question of whether new approaches to conflict resolution are needed. Today, the government, private insurers, and patient safety advocates, among others, are calling for a degree of collaboration among stakeholders not previously seen. All of us have first-hand experience with the enmity and suspicion that often characterize relationships among hospitals, physicians, payors and consumers. Yet, without effective collaboration, ideas such as accountable care organizations, care management agreements and gainsharing seem destined for failure.

Consider these examples:

  • A patient and family aren’t ready for discharge, have nowhere to go, and set up camp in the hospital

  • Negotiations for a new clinical network affiliation break down when the hospital and a physician group can’t reach agreement over governance and money

  • Health system management is at loggerheads on implementing a new patient partnership program

Our traditional advocacy skills may not be adequate tools for resolving conflicts in an environment where sustained collaborative relationships are critical. I believe that as attorneys we must learn to address the conflicts that inevitably arise in ways that allow our clients to continue to work together toward common, beneficial ends.

Our clients are experiencing large-scale change – in the delivery of healthcare, in reimbursement systems, in new quality and outcome measures - and with change comes conflict. As counsel, we have a rare opportunity and responsibility to help our clients navigate through this new territory. But that navigation takes some new skills.

To address this need, members of the Section have developed a four-hour workshop to be held Wednesday afternoon, February 22, 2012 as part of our annual Emerging Issues in Healthcare Conference.

This interactive session, entitled Leading Through Change: The Role of Attorneys in Supporting and Guiding System Change through Strategic Management of Conflict, invites participants to engage in active dialogue with experts and one another to identify new skills and best practices to successfully address conflict while leading clients and stakeholders through uncertainty and change. The workshop leaders are four attorneys with extensive experience in assisting clients in addressing conflict: Charity Scott, Beth Schermer, Debra Gerardi and Dale Hetzler. Their backgrounds include academic law, private practice, organizational consulting and in-house counsel.

Participants will have the opportunity to take an individual conflict styles assessment to identify personal ways of responding to conflict and to understand how others respond, as well. In addition to the dialogue, the session will include take-away strategies, resources and practical tools for early identification of potential conflict situations and for engaging clients, third parties and opposing counsel effectively in conflict-laden situations.

I hope that you can join me in participating in this important workshop. You and your clients will be glad you did.

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