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See, for example, Beauchamp, T.L., “Principlism and Its Alleged Competitors,” Kennedy Institute of Ethics Journal, 5 (1995): 181–98, at 181–83.CrossRefGoogle Scholar

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See Jonsen, A.R. and Toulmin, S.E., The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988); and Jonsen A.R., “Casuistry: An Alternative or Complement to Principles?,” Kennedy Institute of Ethics Journal, 5 (1995): 237–51.Google Scholar

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See Carse, A.L. and Nelson, H.L., “Rehabilitating Care,” Kennedy Institute of Ethics Journal, 6 (1996): 19–35. Feminist theory includes a range of views, often classified as liberal, cultural, radical, and postmodern, that focus respectively on formal gender equality; the positive aspects of women's tendency to view life in relation to others; the negative aspects of women's subordination to men, especially in the sexual arena; and the particular circumstances of individual women that make it impossible to define an “essential” woman. See Tong, R., “Feminist Bioethics: Toward Developing a ‘Feminist’ Answer to the Surrogate Motherhood Question,” Kennedy Institute of Ethics Journal, 6 (1996): 37–52, at 38–42; and Rothenberg, K.H., “Feminism, Law, and Bioethics,” Kennedy Institute of Ethics Journal, 6 (1996): 69–84, at 70–74. The ethic of care is associated with cultural feminism.Google Scholar

See Frank, A.W., The Wounded Storyteller: Body, Illness, and Ethics (Chicago: University of Chicago Press, 1995); and Charon, R., “Narrative Contributions to Medical Ethics; Recognition, Formulation, Interpretation, and Validation in the Practice of the Ethicist,” in DuBose, E.R., eds., A Matter of Principles? Ferment in U.S. Bioethics (Valley Forge: Trinity Press, 1994): 260–83.Google Scholar

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This form of definition is generally accepted. See, for example, Cal. Evid. Code § 1115(a) (Deering Supp. 1999) (“‘Mediation’ means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”).Google Scholar

The role of consensus in bioethics can be analyzed from different points of view. In this article, I focus on methodology and the insight that can be gained from a new scientific perspective. In Deciding Together, Jonathan Moreno accounts for moral consensus based on the political rationale of a liberal, democratic, and pluralistic society. See Moreno, J.D., Deciding Together: Bioethics and Moral Consensus (New York: Oxford University Press, 1995): at 55–72. Further, he offers a philosophy of moral consensus based on naturalism, or the view, associated with both Aristotle and John Dewey, that values emerge from human experience. Id. at 107. From this perspective, Moreno defends “bioethical naturalism” as a philosophy of bioethics that explains moral consensus in terms of moral psychology and actual consensus processes—a “‘metaphilosophy’” that does not compete with “ethical theories based on consequences or duties or bioethical methods based on principles, casuistry, virtue ethics, the ethics of care, or feminism.” Id. See also id. at 106–25 (explaining the naturalist approach). Although Moreno's work and this article proceed along different tracks, they appear to be in accord on several key points: Namely, that ethical values must be understood in terms of human experience; that consensus can be understood as a process with ethical value; and that consensus can be understood as a legitimate, decision-making process in a pluralistic environment. The major difference seems to be that when Moreno describes consensus as the product (compared with the process) of deliberation, he describes consensus as an abstract end point or goal, see id. at 10, 113–14, 117, 130, a concept that differs from the integrated whole that I envision here. Further discussion of these points (and others) would be fruitful, but a full study of the links between the consensus method, liberal political philosophy, and bioethical naturalism is beyond my scope.Google Scholar

See Miller, F.G. Fins, J.J., and Bacchetta, M.D., “Clinical Pragmatism: John Dewey and Clinical Ethics,” Journal of Contemporary Health Law and Policy, 13 (1996): 27–51; and Fins Bacchetta, and Miller, supra note 18.Google Scholar

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The American Society for Bioethics and Humanities (ASBH) was established in January 1998 through the consolidation of three organizations: the Society for Health and Human Values (SHHV), the Society for Bioethics Consultation (SBC), and the American Association of Bioethics (AAB). See id. at 43. SHHV and SBC originally sponsored the task force, referred to in the text, “to explore standards for health care ethics consultation.” Id. at 1. The task force was composed of twenty-one members, including the president of AAB, individuals from the fields of medicine, nursing, law, philosophy, and religious studies, and individuals representing organizations such as the American Medical Association and the Joint Commission on Accreditation of Healthcare Organizations. Id. at 1, 2. With financial support from forty groups and institutions and major funding from the Greenwall Foundation, id. at 1, 37–38, the task force worked hard to synthesize a variety of bioethical material. It reviewed the academic literature related to ethics consultation; collected ethics education and training material from nearly forty institutions; circulated a preliminary draft of its report to obtain feedback from the bioethics community; revised the draft; and finally approved the draft in final form. Id. at 2, 39–42. The work was finished after ASBH was founded, so the final report went to ASBH (the successor organization) for review. ASBH adopted the report on May 8, 1998. Id. at 2, 42.Google Scholar

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See id. at 12–23 (specifying competencies); and infra notes 73–79 and accompanying text (summarizing competencies for the purpose of developing a working model of the ethics facilitation approach).Google Scholar

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Id. at 5–6. The ASBH report does not rely on a specific ethical theory to support the ethics facilitation approach (notwithstanding the assumptions that may be identified in the report or the implications that may follow from it). However, a similar model of clinical ethics consultation is based on the discourse ethics of Jürgen Habermas. See Casarett, D.J. Daskal, F., and Lantos, J., “Experts in Ethics? The Authority of the Clinical Ethicist,” Hastings Center Report, 28, no. 6 (1998): 6–11 (arguing that discourse ethics grounds consensus and consensus building in moral theory). Habermas describes discourse ethics as an effort “to reformulate Kant's ethics by grounding moral norms in communication.” Habermas J., Moral Consciousness and Communicative Action, trans. Lenhardt C. and Nicholsen S.W. (Cambridge: MIT Press, 2nd ed., 1990): at 195. Two principles are central to that effort. The first is the basic principle of discourse ethics which posits that “only those norms may claim to be valid that could meet with the consent of all affected in their role as participants in a practical discourse.” Id. at 197. The second is the corresponding “principle of universalization,” which functions as a rule of argumentation and states: “For a norm to be valid, the consequences and side[-] effects of its general observance for the satisfaction of each person's particular interests must be acceptable to all.” Id. This rule, according to Habermas, replaces Kant's formulation of the categorical imperative (“‘Act only according to that maxim by which you can at the same time will that it should become a universal law’”), but, like the categorical imperative, “plays the part of a principle of justification that discriminates between valid and invalid norms in terms of their universalizability.” Id. Accordingly, Habermas defends discourse ethics as an ethics, with an affinity to Kantian ethics, that is deontological, cognitivist, formalist, and universalist. See id. at 195–211 (examining Kantian ethics and discourse ethics in terms of Hegel's critique of Kant's moral philosophy). Although discourse ethics is the foundation for Casarett, Daskal, and Lantos's model of ethics consultation, Dewey's philosophy underpins Moreno's bioethical naturalism, see supra note 21, and clinical pragmatism, see supra notes 22–27 and accompanying text and infra note 57. The philosophies of Habermas and Dewey warrant comparison and further reflection in terms of their implications for bioethics. For example, if their respective philosophies each support an appeal to consensus, then one may ask whether consensus can be defined as a mid-level principle according to the criteria that Tom Beauchamp and James Childress use to define autonomy, nonmaleficence, beneficence, and justice as mid-level principles; namely, principles that are part of the common morality and accepted in different ethical theories. See Beauchamp and Childress, supra note 3, at 100–02, 110. Although this kind of analysis would contribute to consensus theory and be germane to my article, a fuller discussion of Dewey and Habermas exceeds the scope of this article.CrossRefGoogle Scholar

See Cal. Evid. Code § 1115(a) (Deering Supp. 1999) (defining “mediation”); Marcus, L.J., Renegotiating Health Care: Resolving Conflict to Build Collaboration (San Francisco: Jossey-Bass Publishers, 1995): at 324.Google Scholar

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See Fins, Bacchetta, , and Miller, supra note 18, at 130 (contemplating use of clinical pragmatism before “ethics consultation, appeal to an ethics committee, or judicial intervention”); Core Competencies, supra note 19, at 8 (suggesting use of conflict resolution techniques in seemingly intractable cases; resolution by an appropriate decision-maker if a consensus cannot be reached; and recourse to institutional procedures for dispute resolution, before the courts, if an appropriate decision-maker cannot be found); and Marcus, supra note 42, at 317–19, 322–24, 360–63 (discussing negotiation, mediation, and arbitration as alternatives to litigation).Google Scholar

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Compare Fins, Bacchetta, , and Miller, supra note 18, at 130–31 (arguing that consensus resolutions should be able to “withstand moral scrutiny with respect to both the decisions made and the process of reaching and implementing them”). Also, Joseph Fins, Matthew Bacchetta, and Franklin Miller implicitly acknowledge the need for new ethical standards when they compare the established “‘judgment model’” with the “‘process model’ of moral problem solving.” Miller, Fins, , and Bacchetta, supra note 22, at 46–47. The judgment model, they argue, is characteristic of principlism and casuistry. The facts are given; a moral dilemma is posed; and an effort is made “to reach and justify … an ethically correct decision … from a detached perspective of ethical judgment.” Id. at 46–47. In the process model, which describes clinical pragmatism, the facts “unfold and are assessed” relative to a “morally problematic situation involving the care of a specific patient.” Id. at 47. The aim is to “negotiate an ethically appropriate plan of action for the engaged participants,” so “moral judgments are oriented … to the ongoing project of planning for the care of patients.” Id.Google Scholar

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See Holland, J.H., Emergence: From Chaos to Order (Reading: Helix Books, Addison-Wesley Publishing, 1998) [hereinafter Emergence]; Holland, J.H., Hidden Order: How Adaptation Builds Complexity (Reading: Helix Books, Addison-Wesley Publishing, 1995) [hereinafter Hidden Order]; and Kauffman, S., At Home in the Universe: The Search for the Laws of Self-Organization and Complexity (New York: Oxford University Press, 1995). John Holland and Stuart Kauffman are members of the Santa Fe Institute's external faculty. See External Faculty of the Santa Fe Institute (visited June 9, 1999) <http://www.santafe.edu/sfi/research/residents.html>.Google Scholar

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Although mediation generally involves a process of identifying issues and interests, developing options, and building consensus, different models describe the process in somewhat different terms. See, for example, Saulo, Wagener, , and Rothschild, supra note 47, at 57–61 (describing a three-stage process that begins with the “Introduction and Narratives,” moves to “Exploring the Issues,” and ends with “Decision Making”); Marcus, supra note 42, at 341–46 (describing formal mediation as an eight-step process that includes “premediation appropriateness [or preliminary assessment as to whether mediation is appropriate], premeeting investigation and party buy-in, party meeting, issue clarification, option building, option assessment, movement toward mutually acceptable solutions, and resolution and implementation”); and Responsibilities of Volunteer Mediators: The Mediation Process: Step by Step (visited June 9, 1999) <http://www.pcrcweb.org/volproc.htm> (website of the Peninsula Conflict Resolution Center, in San Mateo, California, which operates community mediation programs as part of a broad range of conflict prevention, management, and resolution services) (describing mediation as a four-step process, with an opening and a closing, that helps the parties define the problem, understand each other, work out solutions, and reach an agreement).+(website+of+the+Peninsula+Conflict+Resolution+Center,+in+San+Mateo,+California,+which+operates+community+mediation+programs+as+part+of+a+broad+range+of+conflict+prevention,+management,+and+resolution+services)+(describing+mediation+as+a+four-step+process,+with+an+opening+and+a+closing,+that+helps+the+parties+define+the+problem,+understand+each+other,+work+out+solutions,+and+reach+an+agreement).>Google Scholar

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