Mediation news

The role of labor mediation in management-physician relations in healthcare institutions

Die Rolle der Arbeitsvermittlung in den Beziehungen zwischen Führung und Arzt in Gesundheitseinrichtungen.

Gasim Shaliyev

Director of Baku Mediation Organization No. 15, mediator

Baku city, June 7, 2024

Dear guests and esteemed colleagues,

As both a lawyer and a citizen, I am grateful to everyone who worked hard to organize such an important event in Baku. It is also gratifying to see that the discussion of mediation possibilities in the application of medical law (a new practice for our country) has been included in the symposium's agenda. This topic, which has recently garnered attention and been the subject of research and discussion, adds valuable insight to our understanding.

The scope of medical law is extensive, encompassing every member of society regardless of their identity or social status. The continuous stream of new medical inventions and approaches underscores the importance of raising awareness and providing ongoing education to the public about fundamental issues in this field.

In the past, we primarily focused on safeguarding the health of the population and citizens in broad terms. However, in the contemporary context of exercising people's rights concerning participants in medical practices, ethical concepts and standards have evolved. Topics such as the availability of organ transplantation and artificial insemination, biosecurity, genetic engineering, among others, are now integral aspects of today's reality.

As social beings, we engage with others in various aspects of our daily lives, such as sustaining our own lives, contributing to society, and meeting societal expectations. This interaction begins within our immediate family from birth and extends to the playground, school, university, workplace, and all other spheres of the social environment. Unlike earlier times when our social environment mainly comprised close relatives, friends, and a limited number of acquaintances like colleagues and neighbors, the advent of the Internet in the 20th century has transformed our social circles. Now, with the Internet being an indispensable reality of our lives, our social network can span the entire globe, connecting us directly and unmediatedly with billions of people.

The creation and development of social relations greatly benefit people. However, the disparity between the resources provided by nature and the desires of humanity often leads to conflicts and disputes. Christopher Moore notably highlighted the lack of alignment in interests among the five elements he identified as factors that trigger disputes.

Since ancient times, the settlement of disputes and the restoration of justice have been primary concerns for people and society. Across all eras, the vast majority of individuals desire to live in a peaceful environment where security is a fundamental motivating factor for societal progress.

In primitive times, disputes were settled by clan/tribal leaders, creating a safe environment for resolution. As civilization developed, the settlement of disputes, although known by different names depending on the period, was ensured by courts representing the power of the state.

Especially since the middle of the 20th century, in the globalized world, as a result of the diversification of international economic relations and the increase in transnational transactions, there has been an observed possibility of applying arbitration and mediation as alternatives to the traditional domestic solution (court). 

Indeed, the 20th century witnessed a profound transformation with the advent of the Internet, which revolutionized how people interact and communicate on a global scale. What was once a network accessible primarily through static computers and requiring specialized knowledge has evolved into a ubiquitous tool that even children can access with ease through mobile phones. This unprecedented accessibility has facilitated connections between people across vast distances, leading to the emergence of diverse relationships and interactions.

It is difficult and burdensome for people to resolve issues such as the establishment and dissolution of marriage relations between citizens of different countries living in another country, maintenance and upbringing of children, disputes arising from labor relations between multinational companies and their employees, problems arising between global brands and consumers due to defective goods and services will be unpredictably costly. People have to take into account the risks arising from the legislation of other countries, for this they have to use legal services and search for a lawyer, and they have to go on with their lives with anxiety and stress until the case is concluded.  

         Absolutely, in today's world, individuals aspire to lead emotionally fulfilling lives where their identities are acknowledged and respected. They seek comfort and security in both their personal and professional interactions, including the resolution of disputes. Often, people desire outcomes that not only address legal aspects but also resonate with their personal interests and values. Informal discussions and negotiations allow parties to address issues that may have little legal significance but are important to them personally. Through mediation, individuals can engage in collaborative problem-solving, exploring creative solutions that satisfy the needs and interests of all parties involved. Unlike traditional legal processes where one party may prevail at the expense of others, mediation aims to achieve outcomes where everyone feels heard, understood, and satisfied. In this way, mediation serves as an efficient alternative solution, promoting mutual satisfaction and fostering positive relationships among disputing parties. By prioritizing dialogue, understanding, and consensus-building, mediation aligns with the contemporary aspiration for holistic and harmonious conflict resolution.

           From this perspective, recent legislative developments in many countries have emphasized the importance of alternative dispute resolution methods, granting individuals the autonomy to resolve their conflicts according to their interests and preferences. Governments recognize the value of settling disputes through mutually agreed-upon means and respect the decisions reached by parties involved. Consequently, reconciliation or consent agreements are acknowledged as legally binding documents, providing a formal framework for resolving disputes outside of traditional legal proceedings. This legal recognition reinforces the legitimacy of alternative solutions and encourages individuals to seek resolution through methods that align with their needs and objectives.

         Mediation, as a form of alternative dispute resolution, fundamentally operates as a negotiation process facilitated by a neutral third party. Unlike traditional legal proceedings, mediation focuses on addressing the genuine needs and interests of the parties involved, rather than rigid adherence to legal positions. Crucially, mediation is voluntary, affording participants the freedom to withdraw from negotiations at any point they feel uncomfortable. Even during final meetings where settlement terms are discussed, parties retain the right to halt the mediation process without explanation. This inherent flexibility empowers parties to engage in interest-based negotiations confidently, ultimately achieving outcomes that align with their true needs. Moreover, the absence of procedural constraints during mediation discussions contributes to a sense of ease among participants. Factors such as the timing and duration of meetings, discussion formats, and the mediator's approach to one-on-one sessions are left to the discretion of the parties involved. This freedom fosters a more relaxed atmosphere, enabling participants to engage more openly and authentically. The mediator's role in promoting frank and informal discussions further enhances participant comfort. By encouraging open dialogue and creating a non-judgmental environment, the mediator helps alleviate tension and emotional strain, allowing participants to communicate more effectively. This conducive atmosphere enables individuals to explore solutions to their conflicts with greater clarity and composure, enhancing the likelihood of reaching mutually satisfactory resolutions.

Indeed, the mediator's impartiality and neutrality are pivotal in facilitating productive mediation discussions. By ensuring equal conditions for both parties, the mediator fosters a sense of fairness and alleviates psychological pressure and anxiety, particularly in labor disputes. In such conflicts, there is often a power disparity between the employer, who possesses substantial resources, and the employee, who may feel oppressed or disadvantaged. The neutral stance of the mediator, coupled with communication in everyday language, helps dispel feelings of fear and reluctance, thereby fostering trust in the mediator throughout the process. In mediation, it becomes evident that individuals primarily seek to be heard and understood. While their expressed opinions may not directly impact the dispute resolution, they contribute to creating a conducive atmosphere for discussions and lead to a more accurate understanding of each other's interests, ultimately aiming for a "win-win" outcome. Confidentiality stands as a cornerstone principle in mediation, underpinning the parties' trust in the process. With confidence in the mediator's impartiality, parties feel secure in sharing sensitive information during mediation sessions to work towards a mutually beneficial resolution. The mediator guides the parties in identifying areas of agreement based on the disclosed information, primarily through asking pertinent questions. Crucially, the confidentiality of mediation discussions ensures that opinions and information shared cannot be used as evidence in court if negotiations fail. This assurance encourages parties to engage more openly and courageously in mediation, fostering an environment conducive to constructive dialogue and resolution.

Certainly, the principles of voluntariness, impartiality, independence, and confidentiality in mediation are crucial for fostering productive discussions, both separately and collectively. Our analysis of foreign and national practices underscores that when individuals engaged in a dispute willingly participate in mediation conducted by impartial parties with a commitment to fairness, the majority of cases culminate in successful resolutions. 

This outcome can be attributed to a fundamental human desire to move forward unencumbered by lingering conflicts in the fast-paced journey of life.

From this perspective, mediation holds a pivotal role in resolving multifaceted conflicts between management and medical staff within healthcare institutions. Through my interactions with doctors and healthcare administrators in preparation for this symposium, it became apparent that these disputes can be categorized into two main types: a) conflicts arising during the doctor's tenure, and b) disputes emerging either upon the doctor's departure from the institution or subsequently.

In reflecting on my research, one striking revelation pertains to the prevalence of "competition" over "cooperation" within medical institutions, particularly between management and medical staff, as per Thomas Klimann's model. In this dynamic, medical staff often operate quietly within the institution, diligently fulfilling their roles and awaiting better opportunities elsewhere. This creates a facade of smooth operation while, in reality, issues persist, merely postponed to a later time with added complexity. In the highly competitive landscape of the medical field, fostering a culture of collaboration and synergy is imperative, rather than deferring problems for the future. While acknowledging the legitimate concerns of leadership, there must be a balance maintained within the institution. While the institution thrives on the expertise of its medical staff, this should not entail unilateral decision-making by the staff. Considering these divergent perspectives, achieving a genuine "win-win" relationship may seem like a lofty aspiration. However, the advancement of medical institutions hinges on the satisfaction and enthusiastic engagement of its doctors. Labor mediation plays a pivotal role in facilitating constructive dialogue and resolving conflicts within a framework of mutual respect and productivity. The mediation principles outlined above provide a platform for both parties to voice their concerns in a safe environment, preserving dignity. It fosters improved communication and cultivates "win-win" conversational habits, applicable beyond the realm of mediation, ultimately leading to smoother outcomes in various aspects of life.

In another aspect, I'd like to highlight the significant presence of anxiety among the individuals I interviewed. This apprehension is particularly noticeable in medical settings, where concerns arise when a doctor departs and takes the institution's clientele with them to another medical facility. Despite the fact that these patients were initially acquired through the medical institution's marketing efforts, they now follow the departing doctor. Consequently, even though the institution facilitated patient acquisition, it is the doctor who ultimately satisfies the patients with their medical care, leading to profitability for the institution. Moreover, when a doctor transitions to a new institution, their influence often prompts other doctors to consider relocating as well, sparking tension and the dissemination of unprofessional sentiments between parties. This toxic environment not only tarnishes the reputation of the doctor but also that of the medical institution. As Kliman suggests, this scenario often results in a "lose-lose" outcome. Labor mediation emerges as a pivotal tool to elevate the relationship between parties from a "lose-lose" to a "win-win" paradigm. It offers a dependable framework for generating legally sound resolutions.

 In conclusion, I would like to inform you that in the renowned book "The Mediation Process," which is now considered the cornerstone of mediation, Christopher Moore elucidated various mediation tools to his readers through the fictional Whittamore-Singson dispute. Richard Singson served as the director of the regional Fairview Medical Center, while Andrew Whittamore was a physician at the same institution. In essence, many mediators worldwide commence their professional journey by delving into the 686-page guidebook, gaining insights from the resolution of conflicts between medical institutions and their physicians.

I believe that even this small detail, shared at the conclusion, will inspire us to resolve disputes like these through labor mediation. 

As mediators, we hold a collective aspiration: 

“No dispute shall remain unresolved!”

Thank you for your attention.