Olympia Lioupi
Conflicts arise when surrogates request life-sustaining treatments that clinicians consider medically futile. This article proposes that early presumptive medical mediation with opt-out provisions should become the default initial offer for resolving such disputes. Grounded in Rawlsian procedural justice and the virtue of epistemic humility, and informed by limited and indirect evidence from healthcare mediation and ICU communication-facilitation programs, this approach offers a fair-process dialogue that can support patient-centered deliberation and clinician integrity when embedded within appropriate legal and ethical safeguards. Mediation offers four procedural advantages: (a) protected and appropriately inclusive voice, (b) confidential caucus, (c) interest-based framing, and (d) outcome ownership. Unlike arbitration or ethics committee determinations, mediation is structured around voluntary participation, mediator neutrality and confidentiality. It does not impose a binding outcome or reallocate legal decision-making authority. These procedural features distinguish mediation from adjudicative or advisory processes, although their comparative effectiveness is context-dependent. Statutory "safe-harbor" models, such as the Texas Advance Directives Act, illustrate how structured dispute-resolution frameworks can be embedded in policy, although they do not themselves constitute mediation. Embedding an early, structured offer of mediation in end-of-life policy may reduce escalation and strengthen the procedural legitimacy and acceptability of decision-making when voluntariness and appropriate clinical, ethical and legal safeguards are maintained. However, it cannot guarantee agreement, shorter ICU stays, reduced litigation, or substantively correct ethical outcomes.