I have previously written about and argued for the creation of a statewide office of dispute resolution to address public and private disputes impacting large segments of Connecticut’s population. A number of states have established such offices, often within their judicial departments, with considerable success.
Major public disputes having great impact on the citizens of this state have become commonplace—whether they’ve been disputes about highway construction, appropriate use of water resources, environmental matters or membership in a regional waste disposal processing district, just to mention a few.
Many of these disputes involve critical public-policy issues that affect hundreds of thousands of lives. Some disputes originate between private parties but enter the realm of quasi-public disputes because of their broader implications.
One type of recurring dispute involves standoffs between hospitals and insurers over payment rates. A recently resolved dispute between Hartford HealthCare and Anthem Blue Cross Blue Shield is but the latest example. (Disclosure: While I have past and present connections with Hartford HealthCare, including being a corporator and emeritus board member of a hospital within the HHC orbit, I am not privy to the specifics of the disagreement between the parties; nor am I aware of the details of positions advanced or rejected. The suggestions I make below are mine, based on a longtime involvement in the field of dispute resolution, including some experience in such disputes. My comments should not be attributed to or considered to be endorsed by any other entity.)
Through the years Connecticut has witnessed a number of these hospital/insurer clashes involving a number of players. One could confidently argue that with the rapidly changing landscape of health care reimbursement models and new paradigms in how value should be measured, incentives created and performance rewarded, we are likely to see more. These constitute just one example of public disputes in which the state has a great interest.
Over the past 50 years since the inception of what is often referred to as the alternative dispute resolution (ADR) revolution, we have witnessed great strides in how private disputes are addressed and resolved through a spectrum of creative, party-controlled processes, both within and without the courts.
Regrettably, we have not been as successful in addressing a wide variety of public disputes or quasi-private disputes with major implications for broad segments of the community. Presumably, such public-oriented disputes have been based on good-faith positions held by the competing sides, each convinced that its position has the most merit. Unfortunately, many of them have ended up as public slugfests.
After the eruption of the dispute, many well-intentioned private parties and public officials have tried to cajole the parties into facilitated resolutions, with varying results.
What has been missing has been a dispute resolution system and process already in place and overseen by the state before the dispute erupts—one that can be guided by impartial third parties skilled in both the subject matter of the dispute and ADR processes to address the dispute.
Surely, parties have the right—if not the obligation—to disagree and to advance positions which they are confident are meritorious. But they also have an obligation to consider the impact on stakeholders who may not be party to the dispute but could be critically affected by its rampage.
So far there is no public entity broadly charged with the responsibility to intervene in these public or quasi-public disputes and to guide the disputing parties toward a process for a mutually acceptable resolution without depriving them of their right to maintain firmly held positions. Of course, we have individual regulatory agencies exercising jurisdiction over a wide body of entities. But we do not have an office with broad oversight and expertise in the field of dispute resolution.
The objective is not to force a resolution, except in the most urgent situation, but rather to align the dispute with the appropriate process, provide the disputants advice, direction and resources and, most importantly, to do it early in the dispute.
A state office of dispute resolution would not be limited to proactively intervening in existing public disputes. There are many additional functions and benefits to the concept, including:
- Coordinating diverse, sometimes, disjointed ADR initiatives by various entities.
- Serving as a clearinghouse for ADR information, activities, training and research.
- Bridging the gap between judicial and private ADR efforts.
- Creating greater public awareness of ADR benefits and encouraging greater ADR use.
Some would argue that the last thing we need in the midst of our state’s economic and budget reductions of most state departments, including the judicial branch, is the creation of another state agency. But that fails to recognize that an office of dispute resolution would yield countless benefits and help avoid destructive breakdowns of relations between organizations, as well as possible threats to citizen safety.
While public disputes will always be a way of life, mediation and a broad spectrum of other alternative processes, if articulated as a favored state policy by the creation of an office of dispute resolution, would allow all involved to spend less time name-calling and sweeping up yesterday’s broken glass and more time on the all-important task of productively solving tomorrow’s challenges.
This is all the more important as many of our state’s previously existing community mediation resources have been sidelined from teaching, training and advocating for facilitated deliberations due to severe budget cutbacks.
Legislative proposals are already being considered for how to better address some of these public disputes. An office of dispute resolution should be high on the list.
Perhaps some thought leader from the executive, legislative or judicial branch will see the great potential of such an office and put the wheels in motion. This is the time to do so. It could be a wonderful holiday gift for Connecticut.