By Holly Hayes 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. 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...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: ADR, law, arbitration
Continue reading...By Holly Hayes 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 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...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 […]
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.