By Holly Hayes Bovio
Richard J. Webb, a guest-blogger on Disputing and author of the Healthcare Neutral ADR Blog, featured last week an excellent post on how the health care reform debate would look if it was mediated. Here is an excerpt:
….
Leaving aside all of the ways in which the healthcare reform debate does not resemble the setting required for effective mediation, I began to imagine what I would do if thrust into a room with a commitment from both sides to mediate in good faith. Having reviewed the parties’ respective positions on numerous, individual proposals for reform, I first thought that there must be a way to parse and compromise among these proposals to reach a mutually acceptable outcome. But the more I thought about it, the clearer it became that such an effort would fail. I had an intuitive sense of why it would fail, but I struggled to explain that result in terms familiar to traditional mediation theory. In fact, I started a blog post on this subject, but put it aside, unfinished.
Shortly after that, I read a description of the Frank Sander Lecture to be given by Professor Lawrence Susskind as the opening plenary of the ABA Dispute Resolution Section’s Annual Spring Conference on April 8th: “Values and Identity Conflicts: Proposing a New Dispute Resolution Doctrine.” The summary, which appears in the ABA Section of Dispute Resolution’s February Just Resolutions Enews (members only), turned on the light bulb in my head.
Read the full post here.
We appreciate Mr. Webb sharing his “light bulb” moment and welcome your comments
on how the health care reform might look if it was mediated.
Tags: Mediation
The ABA Section of Dispute Resolution announced the 2010 winners of its First Annual Mediation Video Contest on YOUTUBE. The First Prize Winner was “Consider Mediation” submitted by: Suzie Hollander, Susan Cox, Joanna Belbey, Elizabeth Bowers, Patricia Dineen, Amy Russ, Raymond Kramer, Darryl Scipio, Kenneth Andrichik, Jaleel Mosquera, Cassandra Georges, Robert Hollander, Evelyne Matthews, Arthur T. Matthews, Rosari Domenick, Julie Crotty.
Check it out!
Stay tuned to Disputing for the Second Prize and Honorable Mention Winners!
Technorati Tags:
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Tags: Mediation
By Holly Hayes Bovio
One month ago, we started our health care conflict resolution series (see Part I, Part II, Part III, and Part IV) focusing on the Roger Fisher, William Ury Getting to YES principled negotiation method involving:
1. Separating the people from the problem.
2. Focusing on interests, not positions.
3. Generating a variety of possibilities before deciding what to do.
4. Insisting that the result be based on some objective standard.
Our final post in this series focuses on “using objective criteria.” In almost any negotiation, no matter how many options are generated to “split the pie,” there is still going to be a conflict of interests.
As seen in our previous posts, the physician wants to continue his vacation and the nurse on the unit wants him to sign his verbal orders per hospital policy, the radiology director wants to decrease patient complaints and the technician wants to be heard so he can be part of the solution, the physician wants to sell his practice for a high price and the hospital wants to purchase it for a low price, the ED manager wants housekeeping to help with the cleaning and housekeeping wants to work within its budgeted number of staff.
In each situation, there are objective criteria that can be used to decrease the likelihood that the negotiation will become just a contest of wills and the ongoing relationship can be saved. Objective standards allow both parties to commit to reaching a solution based on principle, not pressure.
In our examples, objective criteria could be hospital policy, regulatory standards, industry standards, standards used by local hospitals or physician groups or budgetary constraints. As the parties begin the process of identifying objective criteria, they can:
1. Jointly search for reasonable criteria.
2. Be open to the most appropriate standards and how they can be applied.
3. Never yield to pressure from the other party, but defer to objective standards.
Pressure can take many forms: bribes, threats, manipulative appeals to trust or a simple refusal to back down. The principled response in each of these situations is the same: invite the other party to state their reasoning, suggest objective criteria that may apply and finally, refuse to budge except on the basis of objective criteria.
This is the final post in our series on using the principled negotiation method in health care conflict. Look for future posts on Disputing on utilizing proven conflict resolution techniques specifically in health care.
We invite your comments on this post and any suggestions for upcoming posts.
Technorati Tags: Healthcare, ADR
Tags: negotiations
The Fourteenth Court of Appeals of Texas held that a trial court abused its discretion in denying a motion to compel arbitration.
I. Background
In Pham v. Letney, no. 14-09-00387-CV (Tex.App.-Houston [14th Dist.] March 4, 2010) Shelly Letney hired the law firm of Smith & Garg, L.L.C. to pursue her personal injury claims she allegedly suffered in an automobile accident. Sarita Garg is a named partner in the firm and Steven Tuan Pham, an associate with the firm, was at least partially responsible for handling Letney’s case. The attorney-client representation agreement between Letney and Smith & Garg, L.L.C. contained the following arbitration provision:
ARBITRATION
Any and all disputes, controversies, claims or demands arising out of or relating to this Agreement or any provision hereof, whether in contract, tort or otherwise, at law or in equity, for damages or any other relief, shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association. Any such arbitration proceeding shall be conducted in Harris County, Texas pursuant to the substantive federal laws established by the Federal Arbitration Act. Any party to any ward [sic] rendered in such arbitration proceeding may seek a judgment upon the award and that judgment may be entered by any federal or state court in Montgomery County, Texas [sic] having jurisdiction.
Letney sued Pham, Garg, and Smith & Garg, L.L.C., alleging legal malpractice and other claims based on a failure to timely file suit for Letney’s alleged personal injuries. The defendants filed a motion to compel arbitration pursuant to the attorney-client agreement and the trial court denied the motion without stating the basis for the holding.
II. Majority Opinion
The Fourteenth Court of Appeals first determined whether the issues are properly raised in a direct interlocutory appeal or in a petition for writ of mandamus. The court explained that “[i]t is well-settled that when a trial court denies arbitration under the Texas Arbitration Act (“TAA”), the order is subject to interlocutory appeal, whereas when a court denies arbitration under the FAA, relief must be sought in a petition for writ of mandamus.” Because the arbitration provision in the contract explicitly designated arbitration pursuant to the Federal Arbitration Act (”FAA”), the court dismissed Phan’s interlocutory appeal and considered his petition for writ of mandamus.
Then, the court stated the test a party seeking to compel arbitration must establish: (a) the existence of an agreement to arbitrate and (b) that the claims fall within the scope of that agreement. The court noted that Letney acknowledged that she had signed the representation agreement and does not contest that the allegations are within the scope of that provision. Then, the court began discussing Letney’s four defenses against enforcement of the arbitration provision.
(1) Letney cites TAA section 171.002, which prohibits arbitration agreements in respect to claims for personal injuries unless each party to the agreement receives advice of counsel and the agreement is in writing and signed by each party and each party’s attorney. Tex. Civ. Prac. & Rem. Code § 171.002(a)(3), (c). However, the court stated that “[e]ven assuming that the TAA section in question can apply to an arbitration agreement selecting FAA procedures, it would not apply in the circumstances presented by this case because Letney has alleged legal malpractice in this lawsuit and not personal injury.”
(2) Letney argues that “arbitration pursuant to the FAA would be improper, despite the selection of FAA arbitration in the arbitration clause, because the contract in question, for legal services in Texas concerning a Texas-based claim, had no impact on interstate commerce.” But the court was not persuaded because here, the arbitration provision clearly specified arbitration under the FAA. The court said that “the majority of courts that have examined this issue have upheld the right of the parties to an arbitration agreement to choose a particular arbitration scheme (state or federal) to govern any resulting arbitration under the agreement.”
(3) Letney claims that the arbitration provision was unconscionable and therefore, invalid. Letney cited Chief Justice Hardberger’s dissent in Henry v. Gonzalez, 18 S.W.3d 684 (Tex. App.—San Antonio 2000, pet. dism’d by agr.). In Henry, Justice Hardberge argued that “arbitration clauses between attorney and client should be held against public policy in the absence of additional protections for the client.” However, the court said that “we believe that such policy arguments are better directed to the legislature.”
Letney also cites an opinion by the Texas Ethics Commission in which the Commission suggested that it would be permissible under the Texas Disciplinary Rules of Professional Conduct to include an arbitration clause in an attorney-client contract only if the client was made aware of the advantages and disadvantages of arbitration and had sufficient information to make an informed decision as to whether to include the clause. See Op. Tex. Ethics Comm’n No. 586 (2008). However, the court responded that “Opinion No. 586 did not impose any restrictions on attorney-client arbitration clauses because (1) such opinions are advisory at best, (2) the commission expressly declined in the opinion to opine on the substantive law concerning arbitration clause enforceability, and (3) substantive law does not include any such restrictions.”
(4) Finally, Letney cites the Texas Disciplinary Rule of Professional Conduct 1.08(g), which provides that “[a] lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement . . . .” The court, however, stated that an agreement to arbitrate does not limit a party’s liability, but “it merely denominates a procedure for determining that liability.”
The court concluded that none Letney’s arguments have merit, dismissed the interlocutory appeal, and conditionally granted the writ of mandamus.
III. Dissenting Opinion
Justice Charles Seymore filed a dissenting opinion on this case (pdf). In the opinion, Justice Seymore expressed his concern for mandatory arbitration provisions in attorney-client agreements stating that:
I have no disagreement with the majority’s analysis and disposition of all issues with the exception of Shelly Letney’s claim that the method or means of inducing her signature on the agreement renders enforcement procedurally unconscionable. I adopt former Fourth Court of Appeals Chief Justice Phil Hardberger’s concern that special public-policy considerations are implicated when an attorney imposes an arbitration provision on his or her client. See Henry v. Gonzalez, 18 S.W.3d 684, 692 (Tex. App.—San Antonio 2000, pet. dism’d) (Hardberger, C.J., dissenting). Accordingly, I disagree with the majority’s decision to “decline to impose a requirement that attorneys must, in all cases, fully inform prospective clients regarding implications of an arbitration clause in an attorney-client contract.”
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By Holly Hayes Bovio
On Feb. 23, the American Medical Association and 76 other medical societies wrote a letter to President Barack Obama and congressional leaders asking them to adopt legislation to reduce unnecessary medical lawsuits. “‘Defensive medical procedures, prompted by the threat of litigation, add substantial costs for individuals, private and public payers,” the letter stated (read the letter here).
At President Obama’s health care summit on Feb. 25, Dr. Coburn, an obstetrician-gynecologist cited estimates by Thompson-Reuters, that the “U.S. health system wastes at least $600 billion a year because of poorly coordinated care, fraud, frivolous lawsuits and a lack of preventive care.”
Right after the summit, on March 3, President Obama outlined a revised version of his comprehensive health care reform proposal (read article by the American Medical News here) . The plan includes a section specifically on medical liability calling for expanding medical liability alternatives by adding $50 million to a $23 million state pilot project managed by Health and Human Services Secretary Kathleen Sebelius (see our post on this pilot project here ).
We welcome your comments on the continuing discussion of health care reform and
medical liability.
Technorati Tags: Healthcare, ADR
Tags: tort reform
We came across an interesting article from the landmark symposium Transatlantic Perspectives on Alternative Dispute Resolution. The piece is entitled Teaching Comparative Perspectives in Mediation: Some Preliminary Reflections, 81 St. John’s L. Rev. 259 (2007) and was written by professor Jacqueline Nolan-Haley (pictured right).
Here is an excerpt:
Introduction
Mediation is no longer the stepchild of international dispute resolution practice. Scholars and practitioners recognize its enormous potential as a confidential, cost-saving, time-saving, relationship-enhancing process that gives control over disputes to the affected parties and often results in greater levels of satisfaction than litigation. Whether its appeal has peaked because of growing disenchantment with commercial arbitration or the perception that international arbitration has become like U.S. litigation, 1 mediation is beginning to blossom on the international dispute resolution landscape.
The growing interest in mediation at the international level is reflected in numerous international and regional organizations, laws and protocols. Notable examples include organizations such as the Commercial Arbitration and Mediation Centre of the Americas (”CAMCA”), 2 the CPR International Institute for Conflict Prevention & Resolution, 3 and the International Chamber of Commerce (”ICC”) that offer rules and procedures to resolve private commercial disputes through mediation. The World Trade Organization’s (”WTO”) dispute settlement system offers mediation as one method of resolving trade disputes between members. 4 And, a primary example of legislation is the Model Law on International Commercial Conciliation that was developed by the United Nations Commission on International Trade Law (”UNCITRAL”). 5 The Model Law, which was recommended by the United Nations for adoption by member states in 2002, suggests an international consensus on the value of mediation as a mainstream method of resolving disputes. 6
While mediation programs are developing rapidly across the globe, given the transatlantic focus of this conference Transatlantic Perspectives on ADR-and its London location, it is useful to consider some recent examples of mediation’s growth in Europe. In 2002, the European Commission issued a Green Paper that identified ADR as a “political priority” for all “European Union institutions, whose task it is to promote these alternative techniques, to ensure an environment propitious to their development and to do what it can to guarantee quality.”7 The purpose of the paper was to encourage use of ADR as a means of increasing access to justice in cross-border disputes.8 The paper initiated a wide-spread consultation with Member States and interested parties on possible measures to promote the use of mediation.9
Read the full article here. More articles by Professor Nolan-Haley are here.
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Tags: Mediation
By Holly Hayes Bovio
The New York Times posted last week an interview with Dr. Howard Brody (pictured left), professor of family medicine and director of the Institute for the Medical Humanities at the University of Texas Medical Branch in Galveston, discussing a proposal for health care reform involving physicians.
Physicians, Dr. Brody says, are not “innocent bystanders” to increasing health care costs but have made little effort to limit future medical costs. In an editorial in The New England Journal of Medicine, he writes “If physicians seized the moral high ground, we just might astonish enough other people to change the entire reform debate for the better.”
The New York Times spoke with Dr. Brody about his “Top Five” solution:
Q. You write that doctors have an ethical responsibility to advocate health care reform. Why?
A. Doctors have two responsibilities. First, they have a moral duty as an individual advocate. A doctor has a responsibility to his or her individual patients to make them healthier and to help them live longer.But doctors have a second moral duty: they have an obligation to the general public to be prudent stewards of scarce resources. Doctors only get about 10 percent of health care costs in their pockets, but they control about 80 percent. That isn’t our money — it’s someone else’s — and the public has entrusted us to spend it as wisely as possible.
Q. How does your “Top Five” solution work?
A. The basic idea is that each specialty would decide on the top five procedures or diagnostic studies that are done commonly but only really help a small fraction of patients. These are things like arthroscopy for osteoarthritis of the knee or MRI’s and CAT scans, all of which are massively overused, not because they help but because of our enthusiasm regarding high technology.Once each specialty has gone through the research evidence and decided on its “Top Five,” the respective professional organizations would take a public stand, issuing guidelines and recommendations against overuse of those “Top Five” procedures or studies.
By taking a public stand and making it harder for individual doctors to say, “Oh, I know better,” we could build real momentum for cost containment. And we would ultimately all benefit because we don’t need all that technology. You can still be as healthy without it.
A physician-led effort to determine guidelines and recommendations against overuse of the “Top Five” procedures or studies could have a tremendous impact on curtailing future medical costs. We suggest that the process outlined by Dr. Brody could benefit from applying conflict resolution techniques. For example, we recently posted a Four-step Approach to Problem-solving used by the program for Health Care Negotiation and Conflict Resolution at Harvard. This approach could be applied to the “Top Five” process:
A Four-step Approach to Problem-solving
Four negotiation steps developed by the Program for Health Care Negotiation and Conflict Resolution guide minor and major negotiations in health care. The structured multidimensional problem-solving process is called “Walk in the Woods,” after a famous story in which international negotiators at loggerheads over a nuclear arms treaty went for a walk in the woods near Geneva and discovered common interests that led to new solutions.
Step one: self interests. Each participant articulates his or her view of key problems, issues, and options. They are encouraged to actively listen, question, and interact with one another.
Step two: enlarged interests. The participants reframe their understanding of current problems and possible options with a wider perspective, based on the integrative listening and confidence-building that occurred in step one.
Step three: enlightened interests. The group is ready to engage in innovative thinking and problem-solving, generating ideas and perspectives that had not previously been considered.
Step four: aligned interests. Participants build common ground perspectives, priorities, action items, agreement, or plans for moving forward. Depending on the scope of the intended objectives, at this point they recognize the tangible contributions and opportunities accomplished through the meeting.
We invite your comments on this topic.
Technorati Tags: Healthcare, ADR
Tags: tort reform
By Holly Hayes Bovio
Conflict in health care differs from conflict in other arenas because it can result in significant negative outcomes – in some cases, life or death.
Part IV in our series on applying conflict resolution skills in the health care setting follows the Principled Negotiation techniques described by Roger Fisher and William Ury in Getting to Yes with a focus on “inventing options for mutual gain”. Part I in the series can be viewed (here), Part II, (here) and Part III (here).
Why do we want to take the time to invent options when we disagree? Often conflict appears to have only one solution – split the pie in half — and people usually believe they know the correct answer – their answer is the right answer.
Four major obstacles typically inhibit the invention of more than one option for consideration in a negotiation:
- Premature judgment
- Searching for a single answer
- The assumption of a fixed pie
- Thinking that solving the problem is “the other party’s problem”
We can imagine a typical health care conflict between the Emergency Department (ED) Manager and the Manager of Environmental Services (Housekeeping) in a hospital could look like this:
Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. I need your staff to take over all of the cleaning in the department. We have to take care of the sickest, most urgent patients in the hospital.
Manager of Environmental Services: Well, I understand you are busy, but my department hasn’t added any new staff, why do you think we could pick up the slack for your staff?
ED Manager: Well, let’s just split the jobs then, you do half of the work and we will do our best to do the other half of the cleaning.
Manager of Environmental Services: I guess we can try to make that work.
The managers did not “expand the pie” before dividing it – they did not invent options for mutual gain before reaching a solution. Let’s look at some other approaches where the managers take the time to invent creative options:
- Separate the act of developing options from the act of judging the options – brainstorming is a fairly common exercise where parties produce as many ideas as possible without considering their merit until a complete list is made.
- Broaden the options rather than looking for a single answer – one example of this is to invent options of different strengths, some weaker options, some stronger options for consideration; another example is to look through the eyes of someone else, for example, look at the problem through the eyes of the patient or a family member, what options would they suggest?
- Search for options that present opportunity for mutual gain – the secret here is to look for joint gain rather than a winner and a loser by identifying shared interests or dovetailing differing interests.
- Invent ways to make decisions easy for the other party – a painless choice for the other side that advances your interests is a win-win for both parties.
Let’s try the conversation with the two department managers applying the techniques above.
Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. We have to take care of the sickest, most urgent patients in the hospital. What do you suggest?
Manager of Environmental Services: That is a problem. I wonder if our departments could split the cost of a temporary staff member to help in the short-term?
Emergency Department (ED) Manager: That’s a thought. What if we spent some time streamlining the cleaning process to make the best use of the staff’s time. Your department must have a lot of ideas you could share with us.
Manager of Environmental Services: We do have some ideas that have worked in other departments that could be applied here as well. Let’s form a group of your staff and my staff to look at how we can work together to solve the problem.
By working together, the two managers invented options that will likely result in even more options for consideration that will benefit the departments, the hospital and ultimately the patients. The key is taking time to explore those options for mutual gain that advance the interests of both parties.
We welcome your comments and invite you to share other examples of conflict in health care.
Technorati Tags: Healthcare, ADR
Tags: negotiations
The United States Court of Appeals for the Fifth Circuit held that a NASD arbitration panel did not exceed its authority when awarded attorney’s fees directly to counsel.
In Institutional Capital Management, Inc. v. Claus, No. 08-20710 (5th Cir. Feb. 11, 2010), Leonard Claus and Institutional Capital management (ICM) entered into an agreement to buy and sell bonds. After a dispute over some bonds that Claus originally purchased to sell to Sterling Financial Investment Group, Inc. (Sterling) Claus sued ICM alleging negligence, gross negligence, negligent representation, breach of contract, violations of federal and state securities laws, and violations of federal and state statutory fraud. Claus hired Michael Fallick to represent him on a contingency fee basis.
An arbitration panel at the National Association of Securities Dealers (NASD) awarded Claus $25,000 in compensatory damages and $70,000 in attorney’s fees directly to Fallick. The panel also charged Claus $22,000 in arbitration fees. Thus, the net award to Claus was for $3,000. Sterling and ICM moved to vacate the arbitration award and a magistrate judge agreed because “the arbitration panel exceeded its authority when it awarded attorney’s fees directly to Fallick in violation of Texas law.”
The Fifth Circuit first highlighted the Federal Arbitration Act (FAA) grounds to vacate an award. However, the court noted that there is no need to consider whether the alleged legal error violates the FAA, because there is no reversible error in this case. The court explained that Texas law prohibits the award of fees to be paid directly to counsel unless authorized by statute. But it noted that a party that has been ordered to pay attorney’s fees has no standing to challenge to whom those fees are paid to. The court also addressed appellees’ argument that the fee award was unreasonable. It stated that “[a] disproportionate fee award is not tantamount to an excessive attorney’s fee award under Texas law.”
Accordingly, the court reversed the judgment of the magistrate judge and reinstated the arbitral award.
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Tags: securities arbitration
Professor Mitchell H. Rubinstein at the Adjunct Law Prof discussed last week this mediation confidentiality case:
Anthony v. Andrews, 2009 WL 4547605 (Ohio Ct. App. Dec. 4, 2009), is an interesting mediation case. Rebecca Anthony sued Dr. Annette Andrews in state court alleging medical malpractice. During a court-ordered mediation, Andrew’s counsel informed the mediator that Andrews would not give her consent to settle the matter and had never given consent to do so. The mediator included these statements in his mediation report. Upon viewing the report, the trial court concluded that Andrew’s counsel had failed to negotiate in good faith during the mediation. The trial court sanctioned Andrews in the amount of Anthony’s attorneys fees, lost income, and expenses in attending the session. Andrews appealed to the Court of Appeals of Ohio. The Court reversed. The Court held that the statements regarding Andrew’s consent were statutorily privileged from disclosure as mediation communications and failed to meet any exceptions to the privilege as permitted by statute. The Court rejected Anthony’s argument that no privilege should apply since no mediation took place because Andrew’s counsel lacked settlement authority, explaining that the statute nonetheless considers certain statements made pursuant to mediation as mediation communications.
This was not a labor case which is governed by federal law. Also, most states do not have mediation privilege statutes.
We would like to hear how other jurisdictions handle the issue of mediation confidentiality!
Related Posts:
- 2009 Developments in Mediation: Mediation Confidentiality (Dec. 31, 2009)
- The Uniform Mediation Act and Confidentiality (Oct. 2, 2009)
- Mediation Confidentiality (Sept. 19, 2009)
- Legislating ‘Bad Faith’ in Mediation (Sept. 4, 2009)
Technorati Tags: ADR, law, mediation
