Mediation at the End of Life: Getting Beyond the Limits of the Talking Cure

53 Pages Posted: 13 Nov 2007 Last revised: 6 Nov 2013

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Ellen A. Waldman

Thomas Jefferson School of Law

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.

Keywords: medical futility, mediation, end-of-life, bioethics

JEL Classification: I18, I19, K13, K40

Suggested Citation

Pope, Thaddeus Mason and Waldman, Ellen A., Mediation at the End of Life: Getting Beyond the Limits of the Talking Cure. Ohio State Journal on Dispute Resolution, Vol. 23, No. 1, p. 143, 2007; TJSL Legal Studies Research Paper No. 1028186. Available at SSRN: https://ssrn.com/abstract=1028186

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)

HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
Grenada

HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

Ellen Waldman

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4346 (Phone)

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