Harvard Negotiation Law Review, Vol. 9, No. 253, 2004
50 Pages Posted: 5 Jan 2004
This Article centers on understanding the current state of end of life decision-making in America and how Alternative Dispute Resolution (ADR) techniques can help to improve it. In this Article, which was awarded a 2003 Center for Public Resources (CPR) Award of Excellence, I aim to make three contributions:
First, using the recent well-publicized case of Terry Schiavo in Florida I examine evidence of the failures of the judicial system in dealing with end of life treatment disputes. After reviewing the major decisions at the federal and state levels, I show that what underlies this failure is a binary assumption that courts must either fully adjudicate end of life decision-making disputes or leave it entirely in the hands of private decision-makers. I trace this assumption to concerns over the institutional legitimacy of the judicial branch in extremely personal decisions like the cessation of treatment.
With this diagnosis in hand, I develop a case for ADR as an intermediate path in dealing with these disputes. I review the benefits of ADR in this context (speed, reducing undue influence of physicians, enabling patients to take a more active role, offer of better emotional resolution, etc) and overcome certain threshold objections to implementing ADR in this context: primarily concerns over due process protection, the role of courts for norm-articulation in a public rights model, and the underlying assumption that there is no room for compromise in these disputes.
Finally, I turn from theory to practice and describe in detail the design for an end of life treatment ADR system to be implemented in hospitals. I develop a five step model which includes consultation and development of ADR guidelines, negotiation training for doctors and other health professionals, the selection and training of bioethical mediators and the involvement of a hospital's Ethics Committee in the process, as well as the barriers to implementation.
Keywords: Negotiation, law, health, end of life, bioethics, ADR, dispute design
JEL Classification: I10, I18, K13, K19, K41, L20, L29
Suggested Citation: Suggested Citation
Cohen, I. Glenn, Negotiating Death: ADR and End of Life Decision-making. Harvard Negotiation Law Review, Vol. 9, No. 253, 2004. Available at SSRN: https://ssrn.com/abstract=477701