On June 25, 2010, the United Nations Commission on International Trade Law (UNCITRAL) adopted its revised UNCITRAL Arbitration Rules. The revised rules will be effective as of August 15, 2010. They include provisions dealing with multiple parties and joinder, liability, and a procedure to object to experts appointed by the arbitral tribunal. The rules also feature clauses aimed to enhance procedural efficiency; including new procedures for the replacement of an arbitrator, the requirement for reasonableness of costs, and a review mechanism regarding the costs of arbitration. The revised rules are here. Technorati Tags: ADR, law, arbitration
Continue reading...The United States Court of Appeals for the Fifth Circuit held that a grievance concerning a pilot’s discharge is not subjected to the Railroad Labor Act’s (RLA) mandatory arbitration mechanism because the collective bargaining agreement (CBA) between the airline and its pilot’s union explicitly excluded the claim. In CareFlite v. AFL-CIO, No. 08-10807 (5th Cir. Jul. 13, 2010) CareFlite is a medical transportation company that employed 18 helicopter pilots represented by the Professional Employees International Union, AFL-CIO (the “Union”). CareFlite and the Union entered into a CBA effective from April 6, 2006 until April 6, 2011. The CBA required all pilots to obtain certain pilot certification (the “ATP”) within a year of taking a course to be provided by CareFlite. It also stated that “termination of employment resulting from a pilot’s failure to obtain an ATP within the time requirements of this section is non-grievable and non-arbitrable.” Craig Lee Hilton (Hilton) had worked as a pilot for CareFlite since December, 1998. Hilton also served as a union representative. On June 6, 2006 CareFlite discharged Hilton. The Union filed a grievance claiming CareFlite was retaliating against Hilton for his union activity. The arbitrator ordered Hilton reinstated. After CareFlite reinstated Hilton, the Union petitioned CareFlite a 10-month extension for Hilton to complete his ATP. CareFlite denied the request and the Union filed a grievance on May 15, 2007 (the “extension grievance”). On May 26, 2007, CareFlite discharged Hilton for not possessing the ATP certification. On June 1, 2007, the Union filed another grievance seeking reinstatement of Hilton and extension of his ATP deadline (the “discharge grievance”). On June 4, 2007, CareFlite filed a motion in federal court seeking a declaratory judgment that both, the time extension and discharge grievances are not arbitrable under the RLA pursuant to the CBA clause. The district court ordered that both grievances be submitted to arbitration. CareFlite now appeals. The Fifth Circuit stated that the U.S. Supreme Court “explained in Hawaiian Airlines, ‘Congress’ purpose in passing the RLA was to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes.’ 512 U.S. at 252.” Then, the court distinguished the concepts of major and minor disputes. A major dispute involves “rates of pay, rules or working conditions.” On the other hand, minor disputes relate to “controversies over the meaning of an existing collective bargaining agreement in a particular fact situation.” Minor disputes “must be resolved only though the RLA mechanisms, including the carrier’s internal dispute-resolution processes.” The court then noted that the two grievances filed by the Union are distinct disputes and proceeded to analyze them separately. The court held that because the CBA explicitly excluded the discharge grievance from arbitration, it did not grow out of the interpretation or application of the CBA, and, therefore, it is not subjected to the RLA. However, the court held that Hilton and the Union may seek redress through the RLA to resolve the extension grievance. Technorati Tags: ADR, law, arbitration
Continue reading...We are pleased to share with you that our blog Disputing has been cited by the law review article Still Litigating Arbitration in the Fifth Circuit, But Less Often, 42 Tex. Tech L. Rev. 551 (2010) by Donald R. Philbin, Jr. and Audrey Lynn Maness. Kudos to the authors! The article can be accessed via Westlaw or LexisNexis. These are the Disputing blog posts cited by the article: Hall Street Meets S. Maestri Place: What Standards of Review Will the Fifth Circuit Apply to Arbitration Awards Under FAA Section 10(a)(4) After Citigroup, by Victoria VanBuren (May 4, 2009). The post discusses whether the manifest disregard of the law doctrine will ultimately survive in the Fifth Circuit in light of the U.S. Supreme Court ruling on Hall Street v. Mattel. GUEST-POST | Class and Consolidated Arbitration Under the Federal Arbitration Act: What Issues Will the United States Supreme Court Confront in Stolt-Nielsen, S.A. V. AnimalFeeds Int’l Co.?, by Philip J. Loree, Jr. (Sept. 21, 2009). This series discusses Stolt-Nielsen v. AnimalFeeds prior to the decision by the U.S. Supreme Court. 2009 Developments in Arbitration: Manifest Disregard of the Law, by Victoria VanBuren (Dec. 24, 2009). This post is part of our 2009 Year-End Highlight series and discusses the doctrine of manifest disregard of the law as interpreted by the circuit courts after Hall Street v. Mattel. You may find our 2009 year-end series under ‘Categories’ or here. Technorati Tags: law, ADR, arbitration
Continue reading...By Holly Hayes The Joint Commission (TJC) requires that all hospitals have a process in place to identify and assist staff physicians with health and behavior problems. A July study published in the Journal of the American Medical Association (JAMA) conducted by researchers from Massachusetts General Hospital found more than 31 percent of the 2,000 doctors who responded don’t turn in colleagues who are impaired or incompetent. The study surveyed nearly 3,000 doctors across multiple specialties. Read the full story, as reported by ABC news, here. The survey also found that 17 percent of doctors had encountered an impaired or incompetent colleague over the past three years, but only two-thirds of them actually turned those doctors in. Only 69 percent of doctors said they know how to go about reporting a compromised colleague. Lead study author Catherine DesRoches of the Mongan Institute for Health Policy at Massachusetts General Hospital told ABC News the fact that more than a third of physicians don’t agree that they have a responsibility to report doctor’s with problems is a “significant number” she finds troubling. “Self-regulation is the primary mechanism we use to make sure doctors that shouldn’t be practicing are not practicing,” said DesRoches. “That’s a key to protecting patients.” “This is a very important study, because it reminds us that we’re probably not doing what we should be doing,” said Dr. Virginia Hood, president-elect of the American College of Physicians and professor of medicine at The University of Vermont School of Medicine. “Our primary responsibility is always patient safety and what’s in the best interest of the patient, and when it appears that we’re not doing what we should be doing, it’s a matter of great concern,” she added. Doctors who are members of underrepresented minority groups, graduates of foreign medical schools and doctors in smaller practices were less likely to report an impaired or incompetent fellow doctor. There were three main reasons many doctors did not turn in their colleagues. “Twenty-three percent believed someone else was taking care of the problem, 15 percent didn’t think anything would happen and 12 percent feared retribution,” said DesRoches. The 36 percent of doctors who did not subscribe to reporting their colleagues included those who said they only “somewhat agreed” with their professional obligation to report compromised colleagues and also those who disagreed either somewhat or completely. “We just took ‘completely agrees’ and lumped everyone else into a ‘don’t completely agree’ group,” said DesRoches. The reason for that, she said, is because only complete agreement is considered to be consistent with ethical reporting standards set by professional medical societies. She also acknowledged that if these doctors were lumped into the “agree” grouping, many more of them would have been in agreement with their ethical obligation to report an incompetent or impaired colleague. In an accompanying editorial, Dr. Matthew Wynia of the American Medical Association’s Institute for Ethics argued that the authors see the glass as half-empty. “A solid majority of physicians (64 percent) ‘completely’ agreed that they are obliged to report all significantly impaired or incompetent colleagues and, presumably, some number of those who did not agree completely would have agreed ‘somewhat,’” he wrote. DesRoches also notes some of the survey’s limitations, including the effect nonresponders could have on the results. “We did weight our results, but these adjustments are not perfect,” she said. She also acknowledged that evaluating incompetence is very subjective. At least one other doctor agreed, saying that incompetence is not easy to judge. “It’s rare that you see a doctor who is completely incompetent,” said Dr. Rick May, vice president for clinical consulting at HealthGrades, an independent group that rates health care practitioners and institutions. “What’s more common is that you see a physician who’s incompetent when it comes to using a certain medication or performing a certain procedure.” To better understand the effects of disruptive behavior in healthcare, The Journal of Nursing Care Quality published the results of a qualitative study titled “Hospital RNs’ Experiences with Disruptive Behavior”. “Disruptive behavior affects the RN, patient, and practice setting. The nurses described impacts such as being distracted from patient care, taking a physical or emotional toll on them personally, and creating conflicts for them between meeting patient care needs and meeting the operational needs of the hospital. They also expressed concerns that disruptive behavior can decrease the quality of care, create risks to patient safety, delay the delivery of care to patients, and disrupt working relationships among team members.” Nurses also discussed the impact of disruptive behavior on retention. Forty-eight percent of participants said they knew a nurse who transferred to another unit or department because of disruptive behavior and thirty-four percent said they knew nurses who had terminated their employment because of disruptive behavior. For more on this study, read here. A survey published in November 2009 conducted by the American College of Physician Executives published almost one year after The Joint Commission began requiring health care facilities to implement zero-tolerance policies for disruptive behaviors, tells us there is still work to be done in this area. According to anonymous responses to a national survey of 13,000 physician and nurse executives, ninety-seven percent experienced unprofessional outbursts and overreactions, with the majority saying these happened several times a year and sometimes weekly. Physician and nurse executives respondents suggested solutions to decreasing disruptive behavior including: setting clear expectations, implementing consistent enforcement and focusing on teamwork. For more on this survey, read here. Mediation is one non-confrontational interaction strategy that can be implemented to resolve conflict, improve the working relationships of the parties involved and enhance teamwork and patient safety. We welcome your comments on this topic. 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...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.