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Management of clinical disputes in healthcare is a universally acknowledged concern. The traditional, recommendation-focused model of clinical ethics consultation (CEC) employed by hospital ethics committees (HECs) or their designees has been criticized, while bioethics mediation has been increasingly embraced, in theory, as an alternative approach to the delivery of CEC. Unfortunately, the endorsement of mediation has arrived in the absence of consensus as to its implementation and to the training and credentialing of its practitioners. As a result, there have been few dedicated bioethics mediation programs in US medical institutions. This entry begins with a description of mediation as a dispute resolution process and a brief history of bioethics mediation. It then focuses on the ethical dimensions of bioethics mediation along with theoretical and practical controversy in the bioethics community that has impeded widespread adoption of a bioethics mediation model for the management of CEC.
Mediation has existed across cultures for as long as people have had differences (Moore 1996). Today, mediation has become a process of choice for many, particularly those skeptical of the costs of litigation in both human and economic terms. Mediation, as a party-driven process rather than a formal system to which disputants outsource problems for resolution by third parties, is often compelling for those who value assumption of personal responsibility and principles of self-determination. As a dispute resolution process, mediation has gained tremendous momentum over the last few decades and ﬂourishes in both private and court-connected settings as the dominant form of alternative/complementary dispute resolution process. Notably, mediation has been extensively employed across a vast number of subject matter areas and conﬂict settings (Moore 1996). Bioethics mediation signiﬁes the application of the mediation process to issues involving clinical conﬂicts within the healthcare system.
Mediation is a form of assisted negotiation by which parties can resolve or prevent a dispute by achievement of consensus. Consensus signiﬁes an outcome that all parties view as superior to no agreement. It does not signify capitulation, though in some instances a party may be persuaded to alter its position as a function of the mediated discourse. In those instances, change is frequently a by-product of newly acquired respect for the legitimacy of an opposing viewpoint. The mediator is a neutral third party who assists by acting as communication facilitator, resource expander, educator, process manager, translator, generator of creative options, reality tester, scapegoat, and searcher for compatible interests (Moore 1996). To perform these roles effectively, mediators must possess a mastery of negotiation principles. The parties’ perception of a mediator’s neutrality is critical for success since the parties’ willingness to divulge information is often dependent on the trust that the mediator will not use information against its provider. A mediator inspires trust, in part, by his/her perceived neutrality but also as a function of his/her professional stature, inclusive of age and relevant experience, practical intellect, listening skills, level of empathy, warmth, respectfulness, dignity, nonjudgmental nature, and an inﬁnite range of personal characteristics viewed as positive in one privy to sensitive information (Moore 1996).
The mediation process is typically characterized by strict conﬁdentiality. Just as trust in the mediator leads to candor and an open exchange of information, conﬁdentiality enhances trust in the process, increasing the likelihood that failed attempts at mediation will leave the parties in no worse position than they previously occupied. Mediation’s most salient characteristic is its consensual, noncoercive nature. When a mediated outcome is achieved, the parties themselves generate that outcome contrary to what occurs in the arbitration or adjudication of a dispute in which judges, juries, or arbitrators impose verdicts, judgments, or awards on a juridical model. Ownership of outcomes is widely believed to result in high levels of satisfaction with the mediation process and is similarly associated with a greater likelihood of voluntary compliance with resolutions reached (Moore 1996).
Because a mediator does not dictate outcomes, the process allows for caucuses with parties, separately, without the fear of bias associated with ex parte contact between an individual party and the adjudicator of a dispute. Mediation is a ﬂexible process which, in its ideal form, provides a safe forum for the expression of intense feelings, allowing for catharsis rarely experienced in more formal and authoritarian modes of dispute resolution governed by complex rules. This has been referred to as the moral space in which meaningful dialogue occurs (Walker 1993). Parties are given a voice, are encouraged to tell their own stories, and, in consequence, often feel empowered as never before. Hence, mediation ideally includes all parties with vested interests. When all of the parties (sometimes referred to as stakeholders) participate, the likelihood of an outcome that would seriously injure or offend others is diminished.
As in any negotiation, a third party with sufﬁcient power and leverage may ultimately mandate preferred outcomes (Shell 2006). In mediation, the party empowered to make a decision in the absence of agreement must be persuaded that alternative viewpoints are deserving of respect and consideration as an inducement to defer exercise of that power (Bergman 2013; Fiester 2014). Unintended consequences such as the loss of valued relationships or damage to reputation may otherwise ensue. A skilled mediator can, however, diminish the likelihood of such interests being overlooked in favor of more apparent and immediate gratiﬁcation (Shell 2006).
History And Development Of Bioethics Mediation
CEC in the United States has traditionally been conducted by HECs or their designees. The model for delivery of CEC has often been hierarchical and juridical – a process in which ethics consultants, utilizing purported expertise in the application of bioethics principles, provide recommendations that become the de facto position of the institution.
The largest empirical study to date provided a sobering analysis of the functioning of HECs in the management of clinical ethics disputes (Fox et al. 2007). Fox et al. critiqued HECs for (1) lack of uniformity in education and training; (2) lack of uniformity in decision-making methodologies; (3) frequent use of voting in decision-making; (4) a small number of referrals in relation to the profusion of clinical disputes; (5) lack of substantial interaction with patients, family members, and surrogates; (6) lack of referrals from other than hospital staff; and (7) issuance of single recommendations as opposed to a range of ethically reasonable options (Fox et al. 2007).
In 1979, Nancy Dubler and his/her colleagues at Monteﬁore Hospital in New York began to advocate for and implement mediation as a process for the management of disputes among caregivers, patients, surrogates, and family members. This mediation model was distinct from traditional CEC in that it sought inclusiveness; consensus on outcomes by interested parties (as distinct from outcomes directed by third parties in juridical fashion); encouragement of all parties to express themselves freely in a nonjudgmental forum; identiﬁcation and communication of parties’ interests, emotions, values, cultural differences, religious convictions, and relational issues; and employment of a neutral mediator as the manager of a process focused on generating options all might embrace, even in the face of irreconcilable differences in principle. In 2004, Dubler, with Carol Liebman, coauthored the ﬁrst volume on the topic, Bioethics Mediation. A guide to shaping shared solutions (hereafter Bioethics Mediation). Although there had been many articles that addressed clinical ethics mediation prior to the publication of Bioethics Mediation, the book’s arrival spurred intense interest in the subject.
Notwithstanding Dubler’s commitment to mediation as a distinct alternative to traditional CEC, he/she remained convinced that bioethics mediation, charged with the production of outcomes consistent with law, institutional policy, and bioethics principles, was distinguishable from mediation in other settings due to the bioethics mediator’s obligations as an enforcer of external norms. In 2009, the National Working Group for the Clinical Ethics Credentialing Project published Charting the Future: Credentialing, Privileging, Quality, and Evaluation in Clinical Ethics Consultation in the Hastings Center Report (Dubler et al. 2009). This report argued that credentialed clinical ethics consultants should be formally trained in the language of clinical medicine, bioethics concepts and theories, clinical ethics issues, health law, professional codes of ethics issues, institutional policies and practices, and techniques of facilitation, negotiation, or mediation (Dubler et al. 2009).
In 1998, the American Society for Bioethics and the Humanities published Core Competencies for Healthcare Ethics Consultation specifying that clinical ethics consultants require training in a vast array of disciplines (ASBH 1998). A second edition followed in 2011 reﬂecting equal emphasis on the acquisition of substantive expertise (ASBH 2011). Included in the mandated areas of expertise was the ability of CECs to “apply mediation or other conﬂict resolution techniques, if relevant” (ASBH 2011). Despite this clear mandate, Dubler and Liebman’s second edition of Bioethics Mediation also appeared in 2011 and recognized, in its preface, that acceptance of mediation as a model for CEC had arrived without a commitment to the requisite training (Dubler and Liebman 2011). Many articles in leading bioethics journals, before and since, serve to clarify and illuminate ongoing debate on the true nature of bioethics mediation and its moral foundations.
Despite the theoretical acceptance of mediation as a model for the delivery of CEC, data remains unavailable for assessment and reﬁnement of bioethics mediation programs that can only be generated from experience in the clinic. Instead, an ongoing stage of theoretical debate persists over the nature of bioethics mediation and its prospective implementation.
Sources Of Clinical Disputes
Communication, Culture, Personality, And Information-Based Disputes
Mediation in healthcare is referred to synonymously as bioethics mediation or clinical ethics mediation (Bergman 2013). Commentators have concluded that the great majority of these disputes are caused by communication problems, personality issues, cultural differences, or information deﬁcits (Dubler and Liebman 2011). Such disputes often do not involve ethical conﬂicts in the sense in which that term is commonly understood. For example, if a patient takes issue with his/her physician’s prescribed treatment which is presented as mandatory but discovers, during mediation, that the physician considered and dismissed alternatives for reasons which the patient ultimately accepts, the dispute may be resolved.
Similarly, if a patient declines to accept a treatment recommendation based upon the perception that a physician is patronizing his/her, a candid dialogue in which resentment is expressed and reconciliation achieved may resolve the dispute without reference to ethical concerns. To be sure, the idea that a majority of disputes in the clinical setting emanate from sources not ordinarily characterized as ethical dilemmas suggests that the terms “bioethics mediation” and “clinical ethics mediation” encompass a broader range of disputes. It has been suggested that the extent to which third party intervention is required for the management of clinical conﬂict is a function of inadequacies in the physician-patient relationship and its consequent limitations for the internal management of conﬂict. Issues that arise in the context of mediation become more ethical in tone when they embody conﬂicting views on medical decisions among patients, families, and caregivers, each of which can be supported by a legitimate moral premise as more fully described in the sections “Neutrality” and “Moral Uncertainty” below.
Classic Clinical Ethics Disputes
Clinical ethics mediation notably encompasses those disputes that can be characterized as ethical in the traditional sense. These include disputes as to the medical futility of prospective treatments, the right of a patient to refuse treatment, and the painful class of disputes that involve end-of-life decisions (Dubler and Liebman 2011). Each of these types of dispute can occur even where communication is exemplary, personality conﬂicts are not in evidence, and each party possesses all relevant information. Such disputes may also occur simultaneously with issues that are not traditionally characterized as ethical in nature. Literature on bioethics mediation is largely focused on classical ethics disputes which the balance of this entry will, consequently, address.
Special Concerns In The Management Of Clinical Disputes
As noted previously, mediation relies on the presumption of mediator neutrality. In mediation outside the clinic, neutrality is predicated, in part, on the fact that mediation does not ordinarily require an outcome in conformity with external norms, notably legal principles, though it may be inﬂuenced by those norms because of the likelihood of their application in the event that mediation fails. In consequence, the mediator is freed from the role of enforcer of external norms, and the parties are free to resolve their dispute creatively, without reference to the limitations of available legal remedies or the unique nature of a proposed settlement. Alternatively stated, legal mediation is often characterized as norm creating, in contrast to processes focused on the enforcement of external norms such as laws, rules, regulations, or public policy concerns (Moore 1996).
Critics have asserted that, because bioethics mediation requires that any outcome conform to legal, institutional, and generally accepted ethical requirements, a bioethics mediator cannot maintain the level of neutrality necessary for an effective process. While the above premise is initially compelling, it does not survive in-depth analysis. First, most clinical disputes are not ethical disputes in the sense contemplated by critics of bioethics mediation. Mediation of disputes outside the category of true ethical dilemmas has not been a target of criticism. Second, some commentators believe that the use of “principlism” as an ethical compass for clinical decision-making is misplaced because disputes in this realm cannot be resolved by the application of abstract principles such as beneﬁcence, non-maleﬁcence, and patient autonomy. These principles, while useful, often compete with one another for primacy. Such dilemmas are arguably soluble only by those whose lives and values are implicated in a dispute (Clouser and Gert 1997; Charon and Montello 2002). Third, it is widely believed that most true bioethics disputes are not susceptible to resolution by a single deﬁnitive answer, but by a range of outcomes all of which may satisfy legal and ethical requirements (Hoffmann 1994; Fiester 2014). Few outcomes embraced by patients, surrogates, families, and healthcare providers, after a process in which facts and emotions are elicited, alternatives considered, and consensus reached, are likely to violate legal or ethical norms precisely because unanimity in the face of opposing perspectives is difﬁcult to achieve in the absence of critical analysis. Nonetheless, where decisions contemplated by the parties appear contrary to widely accepted ethical norms and are manifestly illegal or violative of institutional constraints, a skilled mediator can carefully examine a proposed outcome, seek advice, ask the parties if they have considered prevalent norms, and, where appropriate, disassociate himself/herself from what he/she believes to be unlawful or unethical, thus terminating the mediation process. A mediator, confronted with the prospect of a consensual outcome contrary to law, institutional public policy, or other accepted principles, need not become an advocate for that proscription, abandoning neutrality, but can move the parties to an examination of their own view of established norms and their willingness to act in opposition to, or compliance with, those norms (Moore 1996).
Mediators must be capable of understanding and conveying limits imposed by law, generally accepted ethical principles, and institutional policies while maintaining neutrality as to outcomes and to the parties. Mediators inevitably carry the burden of their own ethical standards. In so doing, the mediator may be compelled to disassociate himself/herself with a process or outcome he/she believes to be in violation of those standards. While bioethics mediators may have norm enforcement responsibilities that differ somewhat from mediators in legal and commercial settings, the fact that outcomes are constrained by external norms is not fundamentally different from mediation in other contexts.
A starker neutrality issue must also be addressed. Most bioethics mediations involve the use of mediators employed by the medical institution whose providers are party to the mediation process creating the appearance, or fact, of bias in favor of an institutionally sponsored point of view (Dubler and Liebman 2011). While independent mediation services may represent an alternative to hospital-based mediators, their economic and logistical feasibility has not been established. In practice, skilled mediators appear capable of engendering a sufﬁcient level of trust to negate the perception of bias. Nonetheless, study of mediator bias is required, in light of a mediator’s power, both perceived and real (Scott 2014). These issues constitute fruitful topics for clinical research on the performance of prospective bioethics mediation programs.
Clinical conﬂict is notable for the extreme nature of its power imbalances. Patients and their families are typically hampered by anxiety and alienation caused by unfamiliarity with the institutional setting, debilitation caused by injury or illness, the unfamiliar jargon and complexity of medical discourse, distrust of the system, prior negative experiences, and consequent feelings of powerlessness (Dubler and Liebman 2011; Scott 2014).
While mediation cannot perfectly redress power imbalances, the very existence of a forum in which to air grievances – assisted by a professional who actively hears and processes parties’ concerns equally, translates new and seemingly incomprehensible information into manageable components, questions healthcare provider and patient alike, and conveys uniform empathy and respect – favorably alters the odds of achieving patient empowerment.
Absence Of The Patient
Bioethics mediation often takes place in the absence of the primary interested party – the patient. When end-of-life decisions or futility issues are at stake, the patient is typically incapacitated and represented by surrogates. Some have opined that the surrogate’s imperfect knowledge of a patient’s history and wishes can make mediation inappropriate (Hoffmann 1994). This perspective is difﬁcult to embrace unless formal legal proceedings are viewed as feasible and appropriate in every dispute in which the principal cannot be consulted. The time required for formal decision-making could even result in a patient’s demise prior to resolution.
In non-healthcare settings, agents frequently appear in mediation on behalf of principals. The difference is that in most instances designated agents can conﬁrm the principal’s agreement with prospective outcomes or with strategies for achieving prospective outcomes. In bioethics mediation, the agent for an incapacitated patient derives his/her authority from an advance directive, from appointment by a court as legal guardian, or by statutory designations which can differ by jurisdiction. In all of the foregoing circumstances, the right of the agent to make decisions on behalf of the principal is clear. Conﬂicts occur primarily where there is no advance directive, no guardianship appointment, and no relevant statute or where the statute in question sets forth criteria for the exercise of power by a surrogate which an interested party alleges have not been followed. While such conﬂicts can ultimately be adjudicated if mediation fails to achieve consensus, mediation provides a window of opportunity for a more inclusive process, driven by a broader range of concerns than identiﬁcation of the holder of power. Mediation proceeds with the understanding that a failure to achieve consensus will result in the exercise of power by its possessor (Bergman 2013; Scott 2014).
Bioethics mediation is often criticized for taking the ethics out of ethics consultation on the premise that a consensual outcome will allow any and all options to be put on the table, regardless of their moral defensibility or justiﬁability. Conversely, others argue that mediation actually provides a built-in moral safety net because mediation demands that all interested voices be heard and resists the tendency in traditional ethics consultation to privilege some positions or values over others (Fiester 2014). Mediation can grapple with moral uncertainty because it strives to obtain moral consensus about what the contextually right answer or answers actually are (Fiester 2014).
Many clinical ethics conﬂicts involve genuine ethical ambivalence where there is more than one applicable moral principle, those relevant moral principles often conﬂict, and there is more than one ethically justiﬁed option as a legitimate outcome of the conﬂict. Such conﬂicts have been classiﬁed as morally aporetic. Parties may appeal to principles that support their own preferred outcomes. Avoidance of bias requires a process that does not take sides and does not render deﬁnitive judgments. Conventional ethics consultations can be viewed as violative of these principles (Fiester 2014).
Conventional approaches to ethics consultation that provide authoritative recommendations in conﬂicts fraught with uncertainty can also be viewed as ethically suspect because the decision makers have no greater access to the moral truth of the matter than the patient, the family, and the clinical staff. Whether ethics consultants should make recommendations to the parties is widely debated (Fiester 2014; Scott 2014). If all parties are advocates of legitimate moral perspectives, one can argue that no prima facie reason exists to adopt the view of the ethics consultant merely because it carries the imprimatur of their institution. Self-proclaimed authority is not a persuasive moral credential (Fiester 2014). Ethics consultants are not elected ofﬁcials, nor are they appointed in the context of a political system with safeguards. One ethics consultant may adopt a recommendation diametrically opposed to that of another in similar circumstances with no right of appeal and no system in place to ensure that the operative value system reﬂects that of the body politic. There is, after all, no clinical ethics canon (Bergman 2013). There are, instead, disparate perspectives on the balancing of value-laden issues that are not uniform precisely because they are ﬁltered through the value systems of the decision-makers. This may be viewed as predictable in situations where there is “no clear ‘right’ answer” (Fiester 2014).
Charon and Montello (2002) express the view that the underlying presumption of a juridical model of morality is the mistaken notion that morality consists of a body of knowledge that is accessible via analysis of the principles and procedures that constitute the moral theory. Their alternative model posits a collaborative, community-based sharing of mutual means, of a moral life directed at how to live well together. These commentators are not practitioners of, or advocates for, bioethics mediation, yet their exploration of narrative medical ethics is consistent with the ethical foundations of a bioethics mediation that views the moral dialogue itself as the source of ethical outcomes. Fiester describes the mediator’s role in such dialogues as performing “moral archaeology” on the conﬂict – “a systematic uncovering of the moral values, interests, principles and laws pertinent to the ethics disputes” (Fiester 2014).
If there are legitimate moral claims on various sides of a clinical ethics dispute, mediation provides an appropriate mechanism for conﬂict resolution because it works toward consensus about outcome, even where consensus about principles or values is not possible. Mediation facilitates the creation of a shared resolution between parties without taking a stand as to which moral principles or claims trump others (Fiester 2014). The goal of a shared resolution for bioethics mediation can be viewed with a sense of optimism based partly on the disputants’ presumptive common concern for the patient’s best interests (Dubler and Liebman 2011; Scott 2014; Bergman 2013).
Training And Credentialing
While perspectives on the training and credentialing of CECs by the National Working Group and the ASBH have previously been identiﬁed, it is important to note that there is, thus far, no uniform agreement on these issues (Scott 2014). Indeed, it might be predicted from unyielding differences on the true nature of bioethics mediation highlighted in this entry that consensus on training and credentialing is not likely in the foreseeable future. The absence of consensus constitutes a barrier to the widespread implementation of bioethics mediation. Indeed, one commentator opines that “unfortunately, the knowledge, skills and attributes needed to be an effective ethics consultant would make saints hesitate to apply for the job” (Scott 2014).
The following queries may be fruitful. Is it feasible that healthcare professionals with substantial knowledge of medicine, bioethics, healthcare law, and institutional policies can, and will, acquire training in mediation sufﬁcient to achieve professional level conﬂict resolution skills? Is it feasible that skilled professional mediators can, and will, acquire sufﬁcient training in the aforesaid substantive areas as a prerequisite to the practice of clinical ethics consultation? Some opine that a skilled mediator’s need for information in the subject matter areas referenced above is in the nature of familiarization. Familiarity can be acquired through exposure of various kinds, including both nonprofessional level courses and on-the-job training and reading. It does not demand parallel proﬁciency to that of practitioners in the respective ﬁelds. In contrast, it has been argued that knowledgeable healthcare professionals do require a level of conﬂict resolution skills akin to professionals in that ﬁeld. This is consistent with an awareness that mediation has become recognized as a profession (Moore 1996). Lower standards would not only shortchange the parties but result in skewed assessments of the process and its efﬁcacy.
In Europe, bioethics mediation, described as disputes between the patient or patient’s relatives and the healthcare provider, is increasing in importance as a method of conﬂict resolution and as the subject of dialogue. Some European countries also use mediation for the resolution of disputes among members of the healthcare staff. In most countries, information about mediation is provided in writing by the healthcare provider or on its website. Some countries have integrative dispute management systems that include mediation. Mediators are variously supplied by the healthcare provider or independently. As in the United States, obstacles to the use of mediation include lack of awareness and information, skepticism regarding a new methodology, and perceptions of the non-neutrality of an institutionally employed mediator (HOPE 2012).
Clinical ethics mediation has also provoked interest in Japan. It appears, however, that a number of barriers to implementation exist in Japan as a function of legal differences, cultural factors, ﬁnancial issues, and the closed nature of the Japanese healthcare society. In addition, it appears that problems in terminology create confusion in any attempt to draw comparisons between the United States and Japan. Japan has three medical mediation organizations which educate in excess of 2,000 people annually. Accredited medical mediators far outnumber ethics consultants – the precise opposite of the American status quo. But the distinction is likely a by-product of the fact that medical mediation in Japan is a widely divergent process from bioethics mediation in the United States.
In China, an International Conference on Medical Disputes was convened at Taiyuan City in 2014 with representatives from China, Japan, the United Kingdom, the United States, and Hong Kong. While Chinese interest in the American clinical ethics mediation model was effusive, much of the cacophony present in the US-Japan comparison was present in China – particularly as a result of China’s deeply embedded commitment to authoritarian processes.
In the absence of bioethics mediation, it is unlikely that the perspectives of patients and their cohort, as parties on the downside of a power imbalance, will be heard or that shared decision-making will supplant the traditional model of physician as expert. It may be that in emerging economies with less developed and less universally accessible healthcare, implementation of a more balanced view of medical decision-making and the management of clinical conﬂict is premature.
Skepticism of bioethics mediation has undoubtedly slowed its widespread adoption to date. Notable and successful examples of bioethics mediation have existed in the groundbreaking efforts of Nancy Dubler and his/her colleagues at Monteﬁore Hospital in New York. While controversy presents challenges within the mediation community that are healthy and deserving of attention, it ultimately reminds us that mediation, in common with other democratic processes, including adjudication and legislation, is inherently delicate and relies on the strengths of individual practitioners for its effectiveness.
Controversy regarding bioethics mediation has often centered on the relative primacy of process oriented, dispute resolution skills for the mediator versus extensive expertise in medicine, bioethics, healthcare law, and institutional policies, for the effective delivery of clinical ethics consultations. The traditional camp argues that bioethics mediators’ mastery of substantive knowledge is at the core of their consultative ethics bona ﬁdes, whereas the opposing view focuses on the questionable access to greater moral authority provided by subject matter expertise and therefore implicitly derives from the dual realities of moral pluralism and the real-world need for action in the face of legitimate, but opposing, viewpoints. While few institutions have adopted bioethics mediation programs for the management of clinical disputes, many institutions and individual ethics consultants have evolved from an approach that formerly prioritized input from medical and nursing staff and, instead, implements inclusive processes and generates options for ethically reasonable outcomes.
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