Ellen A. Waldman

Futility: The Limits of Mediation

In a recent issue of CHEST (December 2007), Burns and Truog1 argued that the history of futility can be divided into the following three sequential periods: the definitional approach; the procedural approach; and the conflict resolution approach. We agree that attempts to define futility have failed, and we agree that the procedural approach of the Texas Advance Directives Act fails to accord necessary due-process protections. But the last two stages in the schema devised by Burns and Truog1 should be reversed. Recognition of the limits of mediation at the end of life has given rise to procedurally based legislative initiatives, not the other way around. Although Burns and Truog1 acknowledge that “even impeccable efforts at negotiation may sometimes fail,” they nonetheless point to mediation as the last, best hope of the medical community in dealing with the most difficult of surrogate requests for nonbeneficial treatment. Their romantic embrace of mediation is, perhaps, unsurprising. Mediation has been touted in many quarters as the magic band-aid that is ideally constituted to solve the most confounding conflicts of bioethics. But, if by mediation we mean a process in which both sides work to find a creative solution that differs in some way from their initial starting points, then that is not happening in a significant and expanding subset of cases. Rather, in this subset of intractable futility cases, disputant bargaining invariably leads to a predictable outcome. Providers accede to the surrogates’ adversarial positioning, and the patient receives the demanded treatment. We must stop asking mediation to do more work than it is structurally equipped to handle. In most jurisdictions (other than Texas), the mediation of futility disputes occurs in the shadow of decisions in health-care law that give vastly more bargaining power to surrogates. Normative uncertainty in the judicial realm buoys surrogates who are propelled by strong emotion and fierce moral conviction. The same uncertainty feeds providers’ risk aversion, leading them to back down in the face of strongly worded surrogate demands.2 Whether meant as historically descriptive or normatively prescriptive, the evolution of futility devised by Burns and Truog1 inverts the order of the process. Mediate and accede is the status quo. Procedural approaches work to buttress clinical authority by strengthening providers’ best alternative to negotiated agreement (or BATNA) and supplying needed bargaining chips. If we want “real” mediation, then we must equalize the bargaining power between providers and surrogates by giving providers a clearly defined statutory safe harbor to unilaterally refuse requests for inappropriate treatment.