The Supreme Court of Texas has held in a per curiam opinion that the Texas General Arbitration Act (TAA) applied to a dispute where a party invoked the TAA in a hearing on a motion to compel arbitration and no evidence was offered to show the TAA did not apply despite that the motion itself failed to invoke the act. In Ellis v. Schlimmer, No. 10-0243 (Tex., April 1, 2011), Ron and Tana Schlimmer purchased a home in Corpus Christi, TX from Veronica Ellis, a listing agent with Coldwell Banker Pacesetter Steel Realtors (“Pacesetter”), which acted as broker in the transaction. After their purchase, the Schlimmers discovered a number of defects with the home and sued both Ellis and Pacesetter for fraud, breach of contract, negligent misrepresentation and violations of the Texas Deceptive Trade Practices Act. After discovery began and five months before trial, Pacesetter’s lawyers discovered a mandatory arbitration clause in the real estate contract between Ellis and the Schlimmers. Pacesetter and Ellis filed a motion to abate and compel arbitration. The Schlimmers counter-claimed with waiver and estoppel arguments and alleged the arbitration clause did not cover the parties’ dispute. After the trial court denied Pacesetter and Ellis’ motion, they filed an interlocutory appeal with the Corpus Christi Court of Appeals. Although the Schlimmers did not contest the court’s jurisdiction to hear the matter, the Corpus Christi court raised the issue on its own. The Court of Appeals noted that Pacesetter and Ellis failed to invoke either the TAA or Federal Arbitration Act (FAA) in their motion to compel arbitration. The court then dismissed the parties’ appeal for lack of jurisdiction because the trial court failed to determine whether the TAA or FAA applied to the dispute and only the TAA authorized an interlocutory appeal. (Read the lower court’s opinion here.) According to the Supreme Court of Texas, although Pacesetter and Ellis failed to invoke the TAA in their motion to compel arbitration their counsel invoked the TAA by referring to the act at a hearing on the motion. Because of this, The burden was on the Schlimmers to show that some Texas state law or statutory requirement would prevent enforcement of the arbitration agreement under the TAA so that the FAA would preempt the Texas act. They did not raise any such defenses, nor did they question the agreement’s existence. . . . The court of appeals’ decision erroneously placed the burden to establish the absence of any defenses to arbitration on Ellis and Pacesetter. Under these circumstances, its decision is contrary to the strong policy favoring arbitration. The Texas Supreme Court reversed and remanded the case to the Corpus Christi Court of Appeals for consideration on the merits. Technorati Tags: arbitration, ADR, law, Texas Supreme Court
Continue reading...by Holly Hayes Last week, The New York Times reported the Obama administration has proposed long-awaited Affordable Care Act (the Act) regulations “encouraging doctors and hospitals to band together, coordinate care and cut costs,” through the formation of Accountable Care Organizations (ACOs). In return for this collaboration, the government is offering financial rewards to health care providers that meet detailed federal standards which slow the growth of health care spending. The proposed rules explain how doctors, hospitals, nursing homes and home health agencies can qualify for federal bonus payments by forming joint ventures known as ACOs. The Act: includes a number of provisions designed to improve the quality of Medicare services, support innovation and the establishment of new payment models in the program, better align Medicare payments with provider costs, strengthen program integrity within Medicare, and put Medicare on a firmer financial footing. With respect to quality improvement, the Affordable Care Act includes provisions to expand value-based purchasing, broaden quality reporting, improve the level of performance feedback available to suppliers, create incentives to enhance quality, improve beneficiary outcomes, and increase the value of care. The concept of value-based health care purchasing is described on the Agency for Healthcare Research and Quality (AHRQ) website as follows: buyers should hold providers of health care accountable for both cost and quality of care. Value-based purchasing brings together information on the quality of health care, including patient outcomes and health status, with data on the dollar outlays going towards health. It focuses on managing the use of the health care system to reduce inappropriate care and to identify and reward the best-performing providers. This strategy can be contrasted with more limited efforts to negotiate price discounts, which reduce costs but do little to ensure that quality of care is improved. The key elements of value-based purchasing include: Contracts spelling out the responsibilities of employers as purchasers with selected insurance, managed care, and hospital and physician groups as suppliers. Information to support the management of purchasing activities. Quality management to drive continuous improvements in the process of health care purchasing and in the delivery of health care services. Incentives to encourage and reward desired practices by providers and consumers. Education to help employees become better heath care consumers. We welcome any of your thoughts on the new regulations and on the concept of value-based purchasing. Technorati Tags: Healthcare, Mediation 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.
Continue reading...by Holly Hayes Karl Bayer and I taught a three-hour course at the American College of Healthcare Executives (ACHE) national meeting in Chicago last week. Our topic: Introducing Conflict Resolution Skills in Health Care. We summarized how conflict is viewed in the health care setting, reviewed a cost of conflict calculator, and used case studies from Getting to Yes by Roger Fisher and William Ury, The Power of a Positive No by William Ury, and Beyond Reason: Using Emotions as you Negotiate by Roger Fisher and Daniel Shapiro to teach conflict engagement skills. The reasons for working together in healthcare include: protecting/improving on-going relationships and improving patient safety, to meet regulatory standards, and for financial reasons — no margin, no mission. A study of nurses’ experiences with disruptive behavior published in the Journal of Nursing Care Quality summarized it well: “Disruptive behavior in healthcare has been identified as a threat to quality of care, nurse retention, and a culture of safety.” Read more here. The Joint Commission, National Patient Safety Foundation, American Medical Association (AMA) and ACHE have all made statements or developed standards or codes of conduct which support the concept that a collaborative relationship among care givers contributes to the provision of high quality patient care. As part of a series, in the next few weeks we will publish the real-life example used for our cost of conflict calculator and the healthcare case studies we used in our teaching. Technorati Tags: Healthcare, Mediation 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.
Continue reading...S.I Strong, Associate Professor of Law and Senior Fellow, Center for the Study of Dispute Resolution at the University of Missouri recently authored Does Class Arbitration ‘Change the Nature’ of Arbitration? Stolt-Nielsen and First Principles, Harvard Negotiation Law Review, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2011-07. In the article, Professor Strong discusses how class arbitration differs from other forms of multiparty arbitration. Here is the Abstract: In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., the United States Supreme Court stated that class arbitration “changes the nature of arbitration.” Certainly class proceedings do not resemble the traditional view of arbitration as a swift, simple and pragmatic bilateral procedure with few witnesses, documents or formalities, but do these types of large-scale disputes violate the fundamental nature of the arbitral procedure? This article answers that question by considering the jurisprudential nature of arbitration and determining whether and to what extent class arbitration fails to meet the standards necessary for a process to qualify as “arbitration.” During the course of the discussion, the article analyzes the ways in which class arbitration differs from other forms of multiparty arbitration and investigates whether a form of “quasi-arbitration” is in the process of developing as a means of responding to the demands of class proceedings. The article may be downloaded here (without charge) from Social Science Research Network. Other papers by Professor Strong are available here. Technorati Tags: ADR, law, arbitration
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.