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Law Rules

How we resolve our disputes

Entries in health care (3)


A bad example

I have referred to the health care reform debate several times in this blog.  But it occurs to me now that it is a bad example of dispute resolution or mediation.  It has been a year since Michael Scherer called Barak Obama the “mediator-in-chief” in an article in Time magazine.  Despite the President’s considerable mediation talents, the negotiations seem to be going nowhere.  The reason, it seems to me, is that no one is considering the alternatives to a negotiated agreement.  Mediators are trained to get the participants to look at their best and worst alternatives (BATNA and WATNA).  But Congress does not seem to be doing that.  Why?  Because there is no sword of Damocles, no trial date, nor any deus ex machina that will resolve the issue one way or the other if the parties do not do it themselves.  Without such a final win-lose end game, the parties merely stick to their positions, waiting for the other side to blink.

So until someone figures out how to impose such an end game, I am going to quit referring to the health care reform debate as an example of mediation.  You cannot have alternative dispute resolution without alternatives.  Until someone figures out what those are, it is all politics. And that is very different.


Good idea, glad I thought of it

About 5 years ago, my wife and I had some friends over for dinner, and my sister-in-law from Southern California was there as well. We mentioned that our niece (the sister-in-law’s daughter) had just graduated from college and that our friends had a son who had recently moved out there to go to grad school. We thought they might make a good match and asked if they would like to be fixed up. Our friends said that if it came from his parents, their son would have nothing to do with it. So we dropped it.

About 8 or 9 months later, we found out that our niece had begun dating a guy she met through the internet. And so had our friend’s son. Sure enough, they found each other through an electronic Yenta the Matchmaker. When it became their idea, it was a good one. Last summer, we attended their wedding. 

Yesterday, I heard a report on NPR reminding us that Republican opposition to health care reform in the 1990s (Hillary-care) resulted in a Republican sponsored proposal for mandatory health insurance, which the Democrats opposed. Now, Republicans oppose the Democratic health care proposals (Obama-care) because they mandate health insurance coverage for everyone. It seems that neither party thinks this is a good idea unless it is their own. Sounds familiar.

When I try a case or mediate a dispute, I try to plant seeds and let the jury or the parties think that they came up with the ultimate resolution. If the verdict is favorable or the settlement is something everyone can live with, I don’t care whose idea it was. Ego has no place in this business. It’s a shame that politicians can’t say the same thing. 



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.