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How we resolve our disputes

Entries in option (2)


Neutral evaluation

Sometimes when I am called upon to mediate a dispute, what the parties really seem to be looking for is a neutral evaluation of their legal case or negotiating position. While I am happy to do that for the parties, I make sure to explain to them that this is different than mediation. It requires the parties to present to me, in summary form, most of their case. The parties need to consider whether or not they want to share all of that information with the other side, either directly or through me. If they do, it is really like non-binding arbitration. This can help the parties get a more realistic view of their chances of prevailing at trial and, therefore, promotes settlement. However, if the parties or their attorneys are not communicating well, a mediator may still be necessary to facilitate negotiations. On the other hand, if mediation is attempted and reaches an impasse, neutral evaluation may help to break the impasse.

There are no rules declaring what type of dispute resolution is best for resolving any particular type of dispute. It depends on the nature of the parties’ relationship and the dispute. It also depends on how much time and money the parties want to spend trying to resolve it. All of these considerations should be laid out and discussed before attempting to resolve any dispute. One size does not fit all. Your mediator should be familiar with all of the dispute resolution options and discuss them with you before proceeding. In Wisconsin, the statutes require a judge to discuss with the parties the desirability of alternative dispute resolution before trial. Don’t get tunnel vision and lock in on only one option. As I have said before, options are good. Keep them open.


Healthcare Options

Attorneys, negotiators and mediators are used to the concept of determining or creating options.  To us, options are good things.  We might take them or leave them, but it is good to know what they are and that they are there if we need them.  Apparently, some Senators, Congressmen and a large portion of the American public are not familiar with this concept.  Inclusion of a so-called “public option” for health insurance in the bill currently pending in Congress threatens to derail health care reform in this session.  I must admit that I had trouble understanding the rancor in the public debate, so I consulted a healthcare economist and friend of mine, Jason Shafrin.  He explained it to me this way:

“If run properly and fairly priced, the public option can provide a superior choice for many consumers.  Those who don’t want a public option could still buy private insurance.  However, the public option likely will not be run like a private business. If the public option runs a deficit, it may use taxpayer money to make up the difference.  If so, there would not really be a competitive environment.  This would be similar to a market where 5 companies compete, but one has access to a government subsidy and free government loans.  This unfairly tilts the playing field.  Opponents of the public option fear that this will take place; the public option will get unfair support from the federal government.  Many opponents believe that in the short run, the public option may be a good idea, but in the long run, it may dominate the market, and become a Medicare-for-all program.

“Also, applying your analogy to government health insurance, the people who get the option (i.e., consumers) are basically the same people who give the option (i.e., the government, a.k.a. taxpayers).”

This was very helpful.  I also understand that options themselves are very much like insurance.  When you give (or sell) an option, you want to be fairly compensated for it.  When you get (or buy) an option, you expect to pay something, but you don’t want to overpay.  What is often lost in the health care debate is that we are trying to insure against continued exhorbitant increases in health care and insurance costs.  So the 64 thousand (or billion?) dollar question is, how much do we pay to get our public option health insurance?  Ideally, only those who opt in will pay.  There will be no subsidy, other than for those who otherwise would not be able to buy any health insurance, and that money could go to any insurer, not just the public one.  The whole point is to have health insurers who will compete with one another and keep premiums down, while negotiating with health care providers to keep costs down.

Now, the question is how do we keep overall health care costs down when the demand (from all those previously uninsured people) will presumably go up, while supply remains the same (at least in the short term).  That sounds like a presecription for rising prices to me.  In any event, I still do not think it is a good idea to reject or reduce our options.  Options are still a good thing, especially in the negotiation phase.