Health Care Mediation Strategies: How to Resolve Complex Provider, Reimbursement, and Compliance Disputes

As the health care industry continues to evolve, disputes are becoming increasingly complex, from reimbursement matters and provider contracts to False Claims Act issues. In this episode of the JAMS podcast, Hon. Janice Symchych (former), Daniel Platt, Esq. and Ronald Ravikoff, Esq. discuss how mediation can effectively resolve multifaceted health care conflicts.

Drawing on decades of combined experience across the legal, corporate and health care sectors, they explore the unique challenges that make health care disputes intricate and examine strategies for uncovering hidden issues and guiding parties toward resolution. This episode offers valuable insights for attorneys, mediators and industry professionals seeking to navigate health care disputes more efficiently.

Moderator (00:00:02): Welcome to a special podcast series from JAMS: The Mediation Table: Conversations in Conflict Resolution. This series focuses exclusively on mediation, exploring key issues, strategies and best practices with leading JAMS neutrals and industry professionals. In this episode, we're talking about resolving complex health care disputes through mediation. We are joined by three JAMS neutrals with a lot of experience in the industry: Judge Janice Symchych, a former magistrate judge who was also the Deputy General Counsel of litigation at Medtronic, Inc, Daniel Platt, former trial lawyer for over 35 years, focusing on complex commercial litigation matters, including in health care and Ronald Ravikoff, a current member of the American Health care Lawyers Association panel of neutrals and a former partner at the law firms Akerman and Zuckerman Spaeder.

Judge Symchych, Daniel and Ronald, welcome to the podcast.

Judge Symchych (00:00:59): Thank you so much for choosing three people with such interesting backgrounds.

Daniel Platt (00:01:05): Yeah, thank you for having us. I appreciate it.

Ronald Ravikoff (00:01:07): Thank you for having us. It's a pleasure to be here.

Moderator (00:01:11):: Well, you all three each bring such a unique perspective from different corners of the health care legal space. From your experience, what are two or three themes or challenges that seem to cut across all these niches when it comes to mediation? Judge Symchych, I'll start with you.

Judge Symchych (00:01:30): Thanks. First of all, I should say that my real specialty area is the False Claims Act, which is kind of a niche but cutting across all the health care things that I have worked on, I think that as we deal with our clients, there are very very sophisticated clients who know their world far more than happens even in an ordinary commercial mediation. And so, it's on us as mediators to be able to meet them with their level of expertise. I think that's the most important thing for me that cuts across.

Moderator (00:02:20): Daniel, you want to jump in?

Daniel Platt (00:02:22): Sure. I find in the health care cases that the most important thing to do upfront, and it's common to all of them, is to figure out how we're going to negotiate. For example, if it's a reimbursement case, can the parties agree on how we're going to bucket or group the claims together? Is it going to be by the value of individual claims or the types of claims, or is it going to be the types of reasons for denial or underpayment? And if it's a non-health care reimbursement case, but more of a commercial case within the health care industry, I look to see what non-monetary terms need to be negotiated first. For example, IP rights are often at issue, so I think if we can get the parties on the same page as to how we're going to approach the dispute, it's much easier to negotiate and that cuts across all types of health care claims.

Moderator (00:03:24): The approach matters a lot. How about you, Ronald? What would you say to that question?

Ronald Ravikoff (00:03:27): Yep. Well, most of my experience has been with providers and hospitals, and I find one of the most difficult aspects is finding out what the real or unspoken agendas may be. While on the surface, the mediation may be about money, there may be a number of unspoken issues that need to be brought to the surface, at least to the mediator, so that you can effectively resolve the matter. For example, there might be insurance issues, there might be credentialing issues, there might be budget issues and most importantly, there may be personality issues. And it's really incumbent on the mediator, either before the mediation or in private caucus to try to find out what these hidden agendas are.

Moderator (00:04:10): And Ron, just to follow up on that, in your health care mediations, how often do you find yourself really needing to lean in on your specialized experience and when you know a case might require that depth and how do you prepare so you're ready to handle it?

Ronald Ravikoff (00:04:26): Which goes back to my prior comment. A lot of the effort to be an accomplished mediator goes on before the mediation, you'd really need to spend some time with the parties and their lawyers finding out what the case is really about and what degree of specialty you need to bring to the table. So, for example, if it is a provider pay case, which Dan does a lot of, those tend to be very, very technical and may involve a lot of statutes and/or contract work. While if you are dealing with simply a doctor dispute for the hospital, it may be nothing more than a simple contract issue. So, the degree of specialty that you need to bring to the table depends on the case. And finding out what you need to do requires quite a bit of digging, at least beforehand.

Moderator (00:05:25): Dan, what would you say about specialized experience?

Daniel Platt (00:05:29): In the cases that I handle, they tend to be very technical, whether it's a payer provider case or a case involving claims processing or stop loss insurance. So, I'm often brought in because I have a deep background in those areas and you really have to do a lot of work, as Ron was saying, before the mediation starts and kind of unpack what the claims are. I do find that the lawyers do lean on me quite a bit for my expertise because it may be that there's a provider involved and then on the other side there might be a TPA. And they won't have a detailed understanding of the internal processes at a TPA and how the TPA interacts, for example, with a stop-loss carrier or with a repricing vendor. And my background helps bridge the knowledge gap between the parties. And that usually happens before the mediation starts.

Moderator (00:06:37): Judge Symchych, you mentioned the False Claims Act. How does that kind of specialized experience play out?

Judge Symchych (00:06:44): Well, you know, I think everything that Ron and Dan just said applies also in this niche and I would really underscore all of it. So, I ask for ex parte mediation statements because I find if they're shared that they seem more like briefs to the court and argumentative. And if I ask for ex parte ones, we start digging into what Ron and Dan were talking about: what's this really about and what's the problem? And I think there's more “straight-up-ness,” if that's a term. Then once I've read all those things, which often have a lot of exhibits attached to them, I'm into which expertise zone I need to deploy, and I do pre-mediation conference calls that are ex parte again with each set of lawyers. So, all of the background that needs to happen has happened before we show up for mediation day to negotiate.

Moderator (00:07:59): So, preparation is so key in health care mediations - a common theme there in all your answers. So, let's dig a little into that. From your perspective, what should attorneys be doing ahead of time to prepare themselves, the mediator and the other parties for a smoother process? And from a mediator side, how do you typically work with clients before this session to set the stage for success? Dan, you want to start?

Daniel Platt (00:08:24): Sure. I talked a little bit about how to package claims and how you're going to negotiate. If it's a payer provider case, it's really helpful if the parties can agree in advance, and I help them with this on how to negotiate. For example, if one party is separating out all the claims by dollar value and saying we're going to do the top 10% and the other party is doing it by reasons for denial, for example, say medically unnecessary, it's hard to get the negotiations going because both parties have prepared a different analysis. In order to set the stage and prepare for the mediation, I try to tell the lawyers about this concept. I give them suggestions, and then I usually work back and forth, so when we walk into the actual mediation, we're at least on the same page.

Moderator (00:09:24): Ron, what's your process like? What do you like to get done before?

Ronald Ravikoff (00:09:27): I have a two-step process, which I use universally and insist upon it. First, I ask each side to provide me with a 5–10-page statement of their theory of the case, the issues and how they see the process going. And if they want to put in some legal arguments, that's fine too, not necessary. And then after I've received those, I set up a ex parte conference call with the lawyers only to discuss pre-mediation how the case looks. And some of the issues that I'd like to bring up in this pre-mediation is, in addition to their theories about the case, what they think their client needs to hear or how I can help them with their client because many times clients view their lawyers simply as their gladiators and don't want to hear the bad sides of their case. So, I asked the lawyer if I can help them in any way, what they need to hear, is there anything I can do to assist them in moving their clients along?

Moderator (00:10:35): Well, Ron, I want to follow up on that. Let's talk about the actual mediation. When you step into a mediation, that opening moment can really set the tone for these type of health care cases. What techniques do you use to shift parties away from just sort of arguing their positions and towards actually compromising and negotiating?

Ronald Ravikoff (00:10:59): Well, of course it depends on the size of the case, but I try to do a couple of things. 99% of the cases are money issues and rather than diving into the money issue, I think Dan alluded to this, I try to break it down into separate issues and have them focus on the issues that need to be resolved before we even get to the money issues. So, I try to take small bites. I try to get agreement at small bites at a time. And as things get agreed, it starts to come together and I continue to drive them to focus on the issue and not the money. And by that time, if we can get agreement on certain points, the more difficult points become easier.

Moderator (00:11:48): So, scoring some easy wins early on in the process. Judge Symchych, what about you? Where do you like to begin?

Judge Symchych (00:11:55): Well, I have developed a process that really works for me, and I think every mediator kind of has their own methodology about what works for them. It's largely who we are as people, but I start with a joint session every time, but I'm the only one who talks. And it's a joint session about why cases settle, which I've learned from my years as being a magistrate judge and in the federal court system that about 95% cases settle. I talk about risk, cost and time to resolution. A False Claims Act case fully litigated can often be a 10-year window frame, and that's a lot of money and a lot of time before people get that uncertainty with a lot of bucks hanging over their heads finally put away. So, that joint session usually takes about 20 minutes. And I agree with the others who say, you know, unless it's a very unusual case, it's not wise. The times I've allowed joint sessions with presentations, I'll just say they've turned into food fights.

Moderator (00:13:22): You know you talked about food fights, Judge Symchych, every mediator runs into moments where things get stuck. In your experience in health care cases, what strategies do you use to move parties forward?

Judge Symchych (00:13:35): Well, I talk about it at the beginning that when people get stuck and you start seeing the line drawn in the sand and you start hearing, “well, if that's all they're gonna do, then you know, blah, blah, blah,” I tell them that usually a breakthrough point where we're getting to what real compromising and negotiating is, as opposed to asserting our own positions. And that at that point forward, which I always find happens at about two or three in the afternoon, seems like magic or a curse, that's when we really apply ourselves to gap closing and not nickel diming.

As we go through that more difficult period, I will often do what some people call a mediator's proposal. I like to call it a hypothetical question. If you would take this, would they accept it, and ask everybody to quietly tell me about that answer to that question. Sometimes I also ask for what I call secret brackets: now that we've covered this much territory, what's your best wish for where you could land and what's the one that you would accept but very reluctantly? I start testing how far apart things are and sometimes that helps me throw out my hypothetical number.

Moderator (00:15:15): Dan, what would you add to that list?

Daniel Platt (00:15:19): I do it a little differently, but not much differently. Most of my mediations get to that point where people start to dig their heels in and I often transition from negotiating to brackets. And what happens with the brackets that I use is I start to learn where the parties really want to end up as opposed to what they might be telling me. So, when I know where they want to be, we'll go back and forth with a few brackets. I then start to put together a mediator's proposal, and I'll go to both sides. Or if there's more than two sides, all the sides, and I'll have all of the lawyers independently look at the mediator's proposal that doesn't have a price in it yet, and they get to participate in all of the non-monetary terms. So, two things happen. Number one, I know with my proposal, other than the number, everything is acceptable to all the parties. Number two, it gives the parties some agency in how it's being drafted, and they're more supportive of the concept. And three, we're over the biggest barrier, which is “should we settle this case?” I use this technique a lot and it's been very effective.

Moderator (00:16:40): Dan, on a related point, authority can be a sticking point in mediation. How do you handle those situations where the right people aren't at the table or when the authority isn't meaningful enough to move things forward?

Daniel Platt (00:16:53): That’s an excellent question. Especially with insurance companies, you'll often have a representative show up with a fixed amount of authority and when the settlement, in my mind, is above that amount, the way to get home on the settlement is through a mediator's proposal and then give the parties enough time to go back to their organizations and go through channels to get approval for it. Usually, it doesn't happen at the mediation. People need two or three business days to do it. It takes some back and forth with the brackets to get a sense of where the plaintiff needs to be, how much authority the defendant really has, how much more you think they can get if they went back to their organization. All of that does come out in dribs and drabs during the process. 

Moderator (00:17:56): Ron, when you're dotting the i's and crossing the t's in a settlement agreement, the drafting becomes critical. How do you approach that step and does your process change depending on the type of case you're handling?

Ronald Ravikoff (00:18:16): Absolutely. This is an area where I tiptoe very very carefully because I do not want to be accused of practicing law or representing the parties. I want to remain neutral. So, what I will usually do is continually outline the points of agreement and when we “appear” to have reached a settlement, I outline the points of agreement to both parties, get them to agree to them verbally, and then say to lawyers “go outside and draft a settlement agreement.” That's where you find where the disagreement is because when you try to get to the fine points some things were not covered, and then you've got to start the process over again.

Moderator (00:19:02): Judge Symchych, Ron says get an oral agreement first before they get pen to paper. What about you?

Judge Symchych (00:19:10): I agree that I don't want to be the craftsman in drafting things for a wide variety of reasons. I think you could get bogged down in it. It could waste your mediation day getting stuck on some substantive issue and how it's going to be phrased. So, before the parties seem to reach their impasse and have the difficult time, I talk to them about one of them basically taking the pen on their computer and preparing a draft settlement in principle that does not fill in the blanks about the amount, what the payment terms are going to be, what the time period covered is, or any of those other essential False Claims Act terms and to exchange it back and forth while we're negotiating the big items, so that if we do get through the upcoming impasse period, which we usually do, that they can then fill in the blanks and we've got a written settlement in principle that everybody can sign. I learned the hard way that leaving that till 4:30 or 5:00 or 7:00 o’clock in the day can get to be really painful and that's why I like the parties to get working on it well before the middle of the afternoon in a mediation day.

Ronald Ravikoff (00:20:49): If I could just add one point, Jan is absolutely right. If you reach an agreement in principle verbally, you cannot let the parties leave without signing off, at least in principle, on the points agreed to and signed off by the clients because it may take weeks and weeks to draft the detailed final agreement, but if you have the parties signing off an agreement, in principle, it's enforceable and the court will enforce it even if the final agreement is not reached.

Judge Symchych (00:21:23): Yes. You know, I want to interject, Ron, because I want to second it and exclamation point. In my days as a magistrate judge, I saw many settlements and principles that I enforced. And courts, of course, favor those kinds of things. I also will work late into the night on a mediation to get people to that point and sign off on it because if you break up, in my experience, when you're on the verge of it but you're not there, somebody gets cold feet and starts rethinking it by the next day.

Ronald Ravikoff (00:22:01): Yes, all the time.

Moderator (00:22:04): Well, thank you Judge Symchych and thank you, Ron. Thank you, Dan. Let's end this conversation on some advice for counsel. What takeaways would each of you share with lawyers preparing to participate in a health care mediation? What kinds of conversations do you like to have with them in advance and how do you view the relationships between council and other parties? Judge Symchych, do you want to start?

Judge Symchych (00:22:31): Sure. For me, that is the function of the ex parte pre-calls with counsel only, and it's just like my colleague said, it's a detection of is this a war or is this an effort to negotiate? How hardened are the lawyers? Is there history in the relationship? You find out very important things. The other thing I ask everybody to have their opening number ready for me at the mediation and I tell them that I will want to hear it after we go through my preliminaries of my joint session and my whiteboard risk list, so that they've already worked with their clients about where they're going to be in terms of their negotiation position. And I urge them not to get the whole thing started with a nickel dime dance.

Moderator (00:23:42): Dan, some final takeaways for lawyers preparing to participate in a health care mediation?

Daniel Platt (00:23:48): Sure. I agree with everything Jan said, but I want to focus on something a little different because I’ve practiced for about 38 years, and I thought that I had mastered the art of mediating and that my approach was hyper aggressive and trying to get the best deal I could for my client. And now that I've been a mediator for several years, I'm finding that there's actually a more effective approach. The best example I could give is I had a client that tended to pay very small amounts to settle cases in mediations. So, I would take the position with the mediator that we're just going to try the case, we have no interest in settling and be hyper aggressive.

As a result, the mediator would look at me and say, “well, I don't really believe this guy, and so, we're going to try to get them to the middle ground,” whatever they viewed that to be. Had I approached the mediator and said, “listen, I have a client who tends to not settle at a high level, and I don't know what the authority is, they don't tell me when they come in, but I just need you to know that the mediator would have become my advocate and helped resolve the case at a lower number, and it would've been a much smoother process. So, I guess my point is, to some extent, you should recognize that the mediator is there to settle the case and is a tool that you can use and some degree of candor is helpful and you should just think about when you are presenting your position to the mediator, how best can the mediator help you get to “yes”? 

Moderator (00:25:36): Ron, what about you? Any final pieces of advice for counsel?

Ronald Ravikoff (00:25:39): Well, in the health care arena, in terms of the cases that I see most often, there are multiple parties having slightly conflicting interests. There might be a hospital, there might be a practice group that practices within the hospital. There may be a doctor within that practice group that's an issue. There may be an insurance company. One attorney may end up unbeknownst to him representing one side or the other with multiple parties who he thinks have the same interests. I think it's really important, particularly in the health care area, because there are so many conflicting issues that they meet with each one separately and find out exactly what their goals are and what their needs are so that he does not inadvertently get in a conflict of interest situation. I think you really need to be careful about who you represent and what their interests are.

Moderator (00:26:36): Excellent point. Judge Symchych, Ron, Dan, thank you so much for a great conversation.

Daniel Platt (00:26:44): Thank you for having us.

Ronald Ravikoff (00:26:45): Thank you for having us.

Judge Symchych (00:26:47): Our pleasure to join in the good conversation. Thank you.

Moderator (00:26:52): Well, I want to thank my guests again, who will be part of a live webinar on Thursday, December 11th at 8:00 AM Pacific Time. That's 9:00 AM Mountain Time and 11:00 AM Eastern time. They will be diving deeper into some of these topics that we talked about: the incredible challenges that health care mediations pose and the various expertise that are needed and how mediators can use specific techniques to bridge the gap between parties and the important role that council can play in these mediations. Lots more to dive into during that webinar. You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been Judge Janice Symchych, Daniel Platt and Ronald Ravikoff of JAMS. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.