by Holly Hayes
A blog we like, Franklin Solutions, posted about the American Health Lawyers Association healthcare mediation training on February 6 and 7, 2012, in Orlando, Florida. The course is two parts: Part I is taught by Jane Conard (see Disputing blog posts here ) and Jeanne Franklin and is an Introduction to the Basics of Mediation training. The course “will introduce theory, principles, process steps, essential skills and ethical requirements in mediation to those who are considering service as a mediator”.
Part II is titled an Introduction to Interest Based Medical Malpractice Mediation and is taught by Chris Stern Hyman, a medmal mediator. The AHLA website describes Part II training as “A specific application of mediation to medical malpractice claims and lawsuits, this training will introduce how interest-based mediators proceed on the principle that the mediation is not simply bargaining for money and as a result use techniques to create greater satisfaction for the parties and promote resolution.”
Technorati Tags: Healthcare
Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.
Tags: Mediation
We recently came across an interesting article published at Lexology. The piece, written by Mayer Brown, LLP partner William H. Knull, III, is entitled “Ten Hallmarks of Effective Arbitration Agreements with Sovereigns and State Entities.” Here is an excerpt:
Arbitrating with sovereigns involves all of the issues inherent in proceedings between private entities plus a variety of specialized concerns. This article lists 10 of the most critical terms to ensure a level playing field in resolving a dispute with a sovereign party.
- Unambiguous agreement to submit to arbitration. (Example: “Any dispute arising out of or relating to this agreement shall be finally resolved by arbitration …”.)
- Explicit agreement to submit to arbitration signed by any governmental entity that may be necessary to the dispute or to enforcement of the award, including the ultimate sovereign if necessary under the circumstances. Enforcement against non-signatories cannot be presumed.
- Strict compliance with the laws of the sovereign as to procedures to ensure that the substantive agreement, the agreement to arbitrate and the waiver of sovereign immunity by each signatory are all authorized under the sovereign’s constitution, laws and regulations. This should include, if necessary, approval by the legislature, cabinet of ministers or other ultimate authority.
- Specification of the site of the arbitration. This should be carefully chosen for its political neutrality, the quality and reliability of its arbitration jurisprudence and the respect that its courts have for the arbitral process. If at all possible, the arbitration site should not be in the country of the counterparty.
Read the rest of the Hallmarks here.
Technorati Tags:
Tags: guidelines
Via the Court ADR Connection Resolution Systems Institute Resource Center, we learned about a study conducted last year by the Michigan State Court Administrative Office, Office of Dispute Resolution. The study, entitled “Mediation After Case Evaluation: A Caseflow Study of Mediating Cases Evaluated Under $25,000,” found that settlement rates at mediation were higher when all summary disposition motions were decided prior to mediation than when a summary disposition motion was pending. Cases with trial dates scheduled early did not have higher settlement rates than cases without a trial date scheduled early.
You may download the full study here.
Tags: Mediation
Our blog contributor professor S.I.Strong has just published the article “Class and Collective Relief in the Cross-Border Context: A Possible Role for the Permanent Court of Arbitration.” The piece compares the benefits of large-scale litigation and large-scale arbitration in the cross-border context, and considers whether there is a role that the Permanent Court of Arbitration can play in resolving mass disputes of this type. Here is the abstract:
Collective redress of mass legal injuries is a topic of concern in numerous countries around the world, with cross-border disputes giving rise to particular problems due to actual and perceived clashes of law, policy and practice. This article considers whether arbitration might be preferable to litigation as a means of resolving large-scale international disputes. After considering how each procedure handles issues involving jurisdiction, conflict of laws, procedure and enforcement, the article concludes that class and collective arbitration may be in many ways superior to similar actions in court. The article ends with a discussion of the role that the Permanent Court of Arbitration might play in the development of this area of law.
This article appears in 23 The Hague Yearbook of International Law 2010, 113 (2011).
Technorati Tags:
The United States Court of Appeals for the Fifth Circuit held that a district court lacked subject matter jurisdiction to hear a petition to compel arbitration pursuant to Section 4 of the Federal Arbitration Act (“FAA”).
In Volvo Trucks N. America, Inc. v. Crescent Ford Truck Sales, Inc. No. 09-30782, (5th Cir. Jan. 5, 2012) Crescent Ford Truck Sales, Inc. (“Crescent”) operated a Volvo dealership pursuant to a Dealer Sales and Services Agreement (“Dealer Agreement”) with Volvo Trucks North America, Inc. (“Volvo”).
When Volvo decided not to renew its Dealer Agreement with Crescent, Crescent initiated a state agency petition to prevent non-renewal under state law. Volvo sought to compel arbitration according to the terms of the Dealer Agreement and Crescent argued that the federal district court lacked jurisdiction over the state-law dispute. The district court found an independent basis for federal jurisdiction on one of Volvo’s claim that questioned whether the arbitration agreement was enforceable. Crescent appealed.
The Fifth Circuit stated that Vaden required a “look through” approach to determine whether a Section 4 petition is predicated on an action arising under federal law. See Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262 (2009). Applying Vaden, the Fifth Circuit assumed the absence of the arbitration agreement and then determined whether jurisdiction exists under Title 28. The Fifth Circuit concluded that the district court lacked subject matter jurisdiction to hear Volvo’s petition to compel arbitration pursuant to Section 4 of the FAA.
Accordingly, the Fifth Circuit vacated and remanded with instructions to dismiss the case based on a lack of subject matter jurisdiction.
Technorati Tags:
ADR, law, arbitration
By Holly Hayes
In our series about Accountable Care Organizations (ACOs), physician management emerges as an area worthy of better understanding. Marc Bard and Mike Nugent make five observations about the “management of physicians and the achievement of outcomes” in their book “Accountable Care Organizations”:
- While greater clinical integration can be achieved without economics/financial integration, achieving a meaningful clinical integration is difficult without some economic incentives to support it.
- Greater integration is a key driver of improved clinical outcomes, economic performance, and, perhaps most important, provider satisfaction.
- Migrating from a loosely coupled to a tightly coupled management system is extremely difficult and takes significat investment of time, energy, and financial and social capital.
- Transforming care enough to significantly improve outcomes and resource utilization is much more difficult than achieving “clinical integration” at least as defined by the Federal Trade Commission.
- The emerging generation of physicians is more comfortable with standardization and more capable of practicing medicine as a true team endeavor.
In future posts, we will explore some strategies for successful physician management and moving from a loosely to a tightly coupled management system. For our other posts on ACOs, see here, here, here and here. We welcome your thoughts on this topic.
Technorati Tags: Healthcare
Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.Tags: ACO
We found this interesting story in Texas Lawyer about a mediated settlement agreement:
For the first time in 25 years, the State Bar of Texas Family Law Council has filed an amicus curiae brief in an appeal pending before the Texas Supreme Court.
The council submitted the brief on Jan. 9, urging the Supreme Court to grant a mandamus to force a family law judge to approve a mediated settlement agreement (MSA) in a custody dispute. The judge in that suit, 309th District Judge Sheri Dean of Houston, refused to approve the MSA between Stephanie Lee and Benjamin Jay Redus, on the ground it was not in the best interest of a child. The council argues in the amicus that the judiciary should not create common-law exceptions to the enforceability of MSAs.
Read the rest of the article here.
Tags: Mediation
On January 11, the International Institute for Conflict Prevention & Resolution (“CPR Institute”) had its annual awards in New York. This year, the awards were presented to:
- ADR Center in Italy, co-founded by Giuseppe De Palo and Leonardo D’Urso. Award: Outstanding Practical Achievement.
- Roselle L. Wissler for her work, “Court-Connected Settlement Procedures: Mediation and Judicial Settlement Conferences” 26 Ohio St. J. on D.R. 271-326 (2011). Award: Outstanding Original Professional Article.
- S.I. Strong for her work, “Collective Arbitration Under the DIS Supplementary Rules for Corporate Law Disputes: A European Form of Class Arbitration?” 29 ASA Bulletin 145 (2011). Award: Outstanding Original Short Article. Professor S.I. Strong is one of our blog contributors at Disputing. Other articles by S.I. Strong can be found here.
- Michael Diamond for his work, “’Energized’ Negotiations: Mediating Disputes Over the Siting of Interstate Electronic Transmission Lines” 26 Ohio St. J. on D. R. 1, 217 (2011), and Nate Mealy for his work, “Mediation’s Potential Role in International Cultural Property Disputes” 26 Ohio St. J. on D.R. 1, 169 (2011). Award: Outstanding Original Student Article.
- Douglas E. Noll, author of Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts, Prometheus Books, Amherst, NY (2011). Award: Outstanding Book.
- Kluwer Arbitration Blog, http://Kluwerarbitrationblog.com/. Award: Outstanding Electronic Media About ADR.
Read the CPR Institute press release here.
Tags: CPR
This is my second post giving you a tease from one or more chapter in Definitive Creative Impasse-Breaking Techniques in Mediation, Molly Klapper, J.D., Ph.D. (NYSBA 2011). Find the first post here.
Today, I would like to focus on Simeon Baum’s “Sausage Making Laid Bare.” Simeon Baum is a leading NY mediator and former chair of the NYSBA’s Dispute Resolution Section. He actually contributed two separate chapters to the book and has the literal last word. His final chapter is about using the philosophy of the Toa-te Ching in mediation. He describes the philosophy as non-doing, a calming listening presence, not using a particular technique but truly staying tuned. It should be read in full by all mediators since, as he recognizes, a tool box is a wonderful resource, but in the end the mediator must have integrated something more ineffable that allows the mediator to peacefully accept the parties and inspire their trust.[i] That final chapter, “The Technique of No Technique,” points to the need for assimilation, and self-knowledge that leads to proficiency and calm.
In “Sausage Making”, Simeon generously provides a concrete method for dealing with multiparty-finger-pointing disputes. He calls this the consensus-based-risk-allocation model. It not only provides a road map for resolution but effectively uses the “wisdom of crowds” as its own solution.[ii] In three sets of caucuses Simeon asks and records each of the multiple defendants’ answers to three questions:
(1.) What is the likelihood the plaintiff will win at trial, and if so how much?
(2.) What percentage liability will be allocated to each defendant?
(3.) How much will it cost to try this case?
Having discussed risk analysis with each defendant, he records the answers on an Excel spread sheets (templates are provided). He then works with the average amount plaintiff is predicted to win multiplied by the average likelihood of success to obtain the risk assessed damages. He uses the total cost of defense (cumulatively) or if there are wide discrepancies, he can average the estimates and multiply by the number of defendants. He then calculates each defendant’s share of the settlement pot based on the defendants total predictions. This framework helps Simeon to calculate the group’s assessment of risk and to apply it to costs and the potential range of recovery and to create three graduated pots for offers to the plaintiff based on the collective thinking. How Simeon gets buy-in, develops the pots, and the templates he uses are by themselves worth the price of the book for any mediator who faces a multiparty dispute.
Laura A. Kaster is a mediator and arbitrator in Princeton, New Jersey, working in the wider NY metropolitan area. She is the Chair of the NJSBA Dispute Resolution Section and Co-editor in Chief of the NYSBA’s Dispute Resolution Lawyer. She is a CEDR Accredited and IMI certified mediator and an adjunct professor at Seton Hall Law School and regularly presents for the NJSBA, NYSBA, ABA and PLI. From 1997–2006 Chief Litigation Counsel for AT&T Corporation. Until 1997 she was a partner in the Chicago law firm of Jenner & Block. From 1973 to 1975 she was law clerk to Judge Frank M. Coffin of the U.S. Court of Appeals for the First Circuit. More information is available at
http://www.AppropriateDisputeSolutions.com.
[i] I was fortunate to shadow Simeon during my early mediation work and what most impressed me was the fact that without saying much, each of the parties thought he supported them. He also gave me, as he has given many, my own copy of the Tao te-Ching.
[ii] James Surowicki, The Wisdom of Crowds: Why the Many are Smarter Than the Few and How Collective Wisdom Shapes Business, Economics, Societies and Nations (Anchor 2004).
Tags: Mediation
The New York State Bar Association issued a couple of months ago a report entitled, “Best Practices in E-Discovery in New York State and Federal Courts.” The report contains guidelines intended to provide New York practitioners with practical, concise advice in managing e-discovery issues in both state and federal courts in New York, and to be a reference for best practices in e-discovery based on the current state of the law -but can certainly be useful in other jurisdictions.
You may download the Guidelines here.
Tags: guidelines