by Holly Hayes When we saw this link on mediate.com about nurses requesting mediation to achieve safe staffing levels, we wondered where else mediation was being requested in healthcare conflict. A search found that in September, mediation was used, but failed, between the Minnesota Nurses Association and St. Luke’s Hospital in Duluth, MN. A nurses’ union in New Jersey requested mediation in July for their negotiations with hospital management. In June, negotiators for Twin Cities nurses and 14 hospitals met with federal mediators to attempt to resolve differences regarding a new labor contract. We welcome your comments on the use of mediation in health care labor relations. _________________________________________________________________________ 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
Continue reading...In a very troubling opinion, the First Court of Appeals of Texas has held that providing a special master with unrestricted access to all documents on a hard drive and discretion to employ or modify search terms is impermissible when discovery is ordered in a special appearance context. In In re Howard K. Stern, No. 01-09-00438-CV, (Tex. App.—Houston [1st Dist.] August 25, 2010) celebrity Anna Nicole Smith’s mother, Virgie Arthur, alleged in an underlying lawsuit that she had been defamed by the relator, Howard K. Stern, and others who conspired with him to defame her. Arthur alleged that Stern’s actions damaged her ability to gain custody and visitation of her granddaughter. Stern, Smith’s former attorney and companion, filed a special appearance in which he denied all bases for personal jurisdiction in Texas. Arthur alleged that a Texas resident acted as Stern’s agent and because of this, personal jurisdiction attached to Stern. Stern objected to discovery beyond communications relevant to the establishment of personal jurisdiction and agreed to provide Arthur with e-mails from October 12th, 2006 to March 14th, 2008. Stern’s counsel stated that due to the type of email provider used by Stern, no emails would exist on his personal computer or hard drive, but offered to file a subpoena with Stern’s email provider, Yahoo! Business, in order to obtain the relevant emails maintained on the company’s server. Arthur then supplemented an earlier motion to compel by requesting that Stern be ordered to submit his “computers, external hard drives, jump drives, and other such electronic media” to a forensic examiner appointed by the trial court. Prior to resolution of Stern’s special appearance, the trial court ordered him to produce his computer hard drive to a special master for forensic examination. Stern then filed a petition for a writ of mandamus challenging the scope of the discovery ordered both in general and as ordered prior to the hearing on his special appearance. The trial court’s May 11, 2009 order appointed a special master and forensic expert, providing in part: (3) To facilitate production of such documents . . . the Court previously appointed . . . a Special Master . . . to conduct an independent forensic examination of relevant computer hard drives, external hard drives, jump drives, and other such repositories of electronic communications. . . . That appointment now is extended to include examination of Howard K. Stern’s electronic media. (4) To facilitate the work of the Special Master, this Court ORDERS Defendant Howard K. Stern to contact the Special Master . . . within 10 days of the signing of this order to make arrangements for capture and examination of Howard K. Stern’s electronic media. (5) At the option and expense of Defendant Howard K. Stern, [the] Special Master . . . may travel to California, where the electronic media is currently located, to examine and copy the electronic media. If Stern chooses this option, he will pay in advance for [the Special Master]’s time, portal-to-portal, 24-hours per day, at the rate of $250 per hour. Defendant Howard K. Stern will also pay for First Class or Business Class airfare and a good hotel. . . . (6) Also at the option and expense of Defendant Howard K. Stern, [the] Special Master . . . shall produce a copy of Defendant Howard K. Stern’s electronic media and present that copy to the computer forensic expert of Defendant Howard K. Stern’s choosing. If Defendant Howard K. Stern chooses this option, [the special master] will hold the original of Defendant Howard K. Stern’s electronic media without viewing its contents for a period of 10 days after delivery of the copy to Defendant Stern’s expert to allow that expert an opportunity to view the contents first. At the expiration of that 10-day period, [the] Special Master . . . will begin forensic examination of the electronic media and shall: a. have discretion to employ or to modify search terms; b. capture all remaining electronic communications, including but not limited to emails to or from the persons, entities and email addresses listed in parts 1 and 3 of Plaintiff’s Requests for Production, and submit them to Defendant Howard K. Stern for privilege review prior to production. (7) Within 14 days after receipt of the captured documents from the Special Master . . . Defendant Howard K. Stern shall produce a privilege log to [the] Special Master . . . and to [Arthur] listing all documents submitted by [the] Special Master . . . to Defendant Howard K. Stern, which Defendant Howard K. Stern has not produced to [Arthur] and the reasons for withholding the documents from production. [The] Special Master . . . shall then produce all documents within the scope of paragraph one above that are not listed on the privilege log to [Arthur]. . . . (8) [Arthur] shall have an opportunity to challenge any designation listed on the log and, in the event that a designation is challenged, [the] Special Master . . . shall submit the log, along with the disputed document(s), to the Court for in camera inspection. . . . . (10) No waiver of privilege or confidentiality occurs if any otherwise privileged or confidential information is observed by [the] Special Master . . . during the imaging and review process. (11) [The] Special Master . . . is expressly prohibited from using or disclosing any information obtained through the imaging and examination of Defendant Howard K. Stern’s electronic media other than providing to Defendant Howard K. Stern documents captured during his examination, except as specified in this order. The Court of Appeals held that the trial court abused its discretion by ordering discovery without a showing that the discovery was relevant to the jurisdictional facts because the plain language of Texas Rule of Civil Procedure 120(a)(3) authorizes discovery prior to a ruling on a special appearance only with respect to those facts essential to justify an opposition to the special appearance. According to the court, […]
Continue reading...The Fifth Circuit has held that it lacks inherent authority to impose sanctions for conduct which occurred during arbitration. In Positive Software Solutions, Inc. v. New Century Mortgage Corp., No. 09-10355, (5th Cir., September 13, 2010), Positive Software Solutions sued New Century for allegedly infringing telemarketing software licensed to New Century. The case was subsequently ordered to arbitration under the terms of the parties’ contract. During arbitration, attorney Ophelia Camina advised New Century on various discovery matters despite that the arbitrator had a previous professional relationship with Camina. As a result of this relationship, the district court vacated the arbitration award. The Fifth Circuit reversed the vacatur and remanded the case. After the case was remanded, New Century declared bankruptcy. Positive Software moved for sanctions against Camina under Federal Rule of Civil Procedure 37, 28 U.S.C. § 1927, and the court’s inherent authority. The district court sanctioned Camina a portion of Positive Software’s attorneys’ fees under its purported inherent authority. Camina then appealed the sanction. The Circuit Court declared that a district court has a limited inherent authority to impose sanctions in order to control the litigation before it. A court’s inherent authority may be exercised only if doing so is essential to preserve the authority of the court. The court then stated that a district court’s inherent power to impose sanctions does not extend to collateral proceedings. According to the court, arbitration itself is a collateral proceeding regardless of whether a court ordered the parties to arbitration. The court further stated, “Because Camina’s conduct was neither before the district court nor in direct defiance of its orders, the conduct is beyond the reach of the court’s inherent authority to sanction.” The Circuit Court also held that the lower court’s sanction award violated the Federal Arbitration Act (FAA) because it went beyond a court’s narrowly defined authority under the act. Under the FAA, a court may only determine whether arbitration should be compelled and whether an arbitration award should be confirmed, vacated or modified. Because the FAA specifically provides for limited judicial involvement in an arbitral dispute, to enforce the lower court’s order would expand the judiciary’s role in the arbitration in direct conflict with the FAA. The Fifth Circuit reversed the sanctions award and remanded the case. Technorati Tags: ADR, law, arbitration
Continue reading...The First Court of Appeals of Texas held in a case of first impression that a cooperative law agreement in a divorce proceeding does not violate public policy. In In re Mary Lynn Mabray, No. 01-09-01099-CV (Tex. App.-Hous. (1 Dist.) August 31, 2010) the relator, Mary Lynn Mabray, challenged a trial court’s order denying her motion to disqualify counsel from representing her husband, Gary Allen Mabray, and her motion to revoke consent to arbitration. In October 2008, the relator sought a divorce from her husband after 35 years of marriage. In February 2009, the parties signed a four page document titled “Cooperative Law Dispute Resolution Agreement” (Agreement). The Agreement forbade formal discovery unless agreed upon by the parties, relied on “good faith” informal discovery and provided that the cooperative law process would cease and the parties would submit the divorce to arbitration if the divorce was not settled by April 30, 2009. Additionally, the Agreement specifically cited to the arbitration and informal settlement conference provisions of the Texas Family Code. (TEX. FAM.CODE ANN. §§ 6.601, 604.) The parties filed a “Joint Motion for Referral to Arbitration” on March 11, 2009 asking the court to submit their case to arbitration if they failed to resolve their case by agreement on or before April 30, 2009. The Motion also asked the court to appoint a person agreed to by the parties as the arbitrator. The trial court signed the requested order on March 18, 2009. Because a final decree of divorce was not submitted to the court by April 30, 2009, the cooperative law process ceased by its own terms. Nowadays, many people use an app to grab cheating evidence from their partner. If you want to know more, this article about which is better find out mspy vs spybubble for the truth can help you with that. The relator asserted to the trial court that the Agreement sought to “contract around” Texas’s collaborative law statute, section 6.603 of the Texas Family Code in an effort to allow her husband’s attorney to continue to represent him in litigation once the collaborative process had failed. Her husband sought to compel arbitration and argued that the Texas collaborative law statue is inapplicable to cooperative law agreements. On October 30, 2009, the trial court signed an order compelling arbitration. The relator sought a writ of mandamus from the Court of Appeals directing the trial court to overturn its order compelling arbitration on public policy grounds and its order denying her motion to disqualify her husband’s attorney. The Court of Appeals first addressed the differences which exist between cooperative and collaborative law: Akin to collaborative law, cooperative law “is a process which incorporates many of the hallmarks of Collaborative Law but does not require the lawyer to enter into a contract with the opposing party providing for the lawyer’s disqualification.” Smith and Martinez, 14 HARV. NEGOT. L.REV.. at 166. “Cooperative law includes a written agreement to make full, voluntary disclosure of all financial information, avoid formal discovery procedures, utilize joint rather than unilateral appraisals, and use interest-based negotiation.” Lande and Herman, 42 FAM. CT. REV. at 284. Put simply, cooperative law agreements mirror collaborative law agreements in spirit and objective, but lack the disqualification clause unique to collaborative law agreements. The court noted that Texas was the first state in the nation to codify collaborative law. According to the court, “cooperative law is a small but legitimate movement akin to collaborative law,” and although no state has yet codified cooperative law it is not prohibited in any jurisdiction. The Court of Appeals first addressed whether the collaborative law statute controlled the parties’ agreement and, if not, whether a cooperative law agreement is void within the State of Texas as a matter of public policy. The trial court determined that the parties’ Agreement was a cooperative law agreement which need not conform to Texas’s collaborative law statute. According to the Court of Appeals, the plain language of the collaborative law statute stating “a dissolution of marriage proceeding may be conducted under collaborative law procedures,” makes it elective, not mandatory. Instead, parties electing to follow collaborative law statutory procedures obtain certain benefits from the trial court. In order to obtain these benefits, the parties must enter into an agreement providing for (1) a full and candid exchange of information; (2) suspending court intervention in the dispute while the parties are using collaborative law procedures; (3) hiring any experts jointly; (4) withdrawal of all counsel in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and (5) other provisions agreed to by the parties that are consistent with a good faith effort to collaboratively settle the suit. According to the court, the Agreement signed by the parties did not require the withdrawal of counsel if a settlement was not reached; therefore the collaborative law procedures were not applicable. The Court of Appeals stated that although the collaborative law statute is one of four alternative dispute resolution processes the Texas legislature specifically encourages parties in divorce proceedings to utilize, they are not the exclusive forms of alternative dispute resolution available in a divorce. There is no statute or case law in Texas that explicitly prohibits any specific form of alternative dispute resolution. Additionally, nothing in the statute or in its legislative history leads us to the conclusion that the collaborative law statute forbids parties in Texas from entering into cooperative law agreements. It has been the stated policy of Texas from at least 1987 “to encourage the peaceable resolution of disputes … and the early settlement of pending litigation through voluntary settlement procedures.” TEX. CIV. PRAC. & REM.CODE ANN. § 154 .002 (Vernon 2005). There is no statute or case law in Texas that explicitly prohibits any specific form of alternative dispute resolution. Because Section 6.604(a) of the Family Code is silent as to the procedures that can be used in informal settlement conferences, the court concluded that “the legislature meant to […]
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.