Professor Gatter estimates that institutional ethics consultation processes are used to resolve as many as 13,500 end-of-life treatment (EOLT) disputes each year. Despite this sizable case load, the law has largely ignored the method of dispute resolution used to address EOLT disagreements. This article argues that, at the stage when an ethics consultation is requested in an EOLT dispute, mediation is the most appropriate method for attempting to resolve that dispute. This article challenges current wisdom that mediation is inappropriate for addressing disputes between physicians and patients. The challenge is based on four key points. First, EOLT disputes between physicians and patients (or their decision-makers) involve disputants in an ongoing, trust relationship. Second, a primary goal in resolving disputes between those in a trust relationship should be to preserve that trust as much as possible. Third, mediation is the most likely of dispute resolution methods to preserve trust between disputants. Fourth, techniques exist to minimize, if not eliminate, the risks of mediating disputes between physicians and patients, such as the risk of preserving a power imbalance between the parties. As a result, Professor Gatter recommends changes in the law to assure that patients and their decision-makers are provided with the option of mediating EOLT disputes.
Gatter, Robert A., Unnecessary Adversaries at the End of Life: Mediating End-of-Life Treatment Disputes to Prevent Erosion of Physician-Patient Relationships. Boston University Law Review, Vol. 79, p. 1091, December 1999.