We came across an interesting article entitled “An Empirical Study of Predispute Mandatory Arbitration Clauses in Social Media Terms of Service Agreements,” by Michael L. Rustad, Richard Buckingham, Diane D’Angelo, and Katherine Durlacher, forthcoming at the University of Arkansas at Little Rock Law Review. Here is the abstract: With predispute mandatory arbitration clauses, a large and growing number of social networking sites (SNSs) are depriving users of their consumer rights. SNS users across the globe are required to agree to predispute mandatory arbitration as a condition of accessing content. Consumers that enter into clickwrap or browsewrap agreements waive their right to a jury trial, discovery, and appeal, likely without being aware that they are losing these important rights. The U.S. Supreme Court’s arbitration jurisprudence has made it difficult to challenge these troublesome contractual clauses and practices. The Roberts Court’s recent decisions, including AT & T Mobility, LLC v. Concepcion (2011) and CompuCredit Corp. v. Greenwood (2012), make it clear that the Court favors a broad enforcement of consumer arbitration agreements stripping the state of the ability to police these documents. These decisions are, in effect, a federal takeover of arbitration, preventing state efforts to protect consumers against one-sided and oppressive consumer arbitration clauses. This Article is the first empirical study of the use of predispute mandatory arbitration clauses by SNSs and sheds light on whether SNSs have used arbitration clauses strategically in order to achieve a “liability-free” zone in cyberspace. Our empirical findings reveal that SNS arbitration clauses contravene many of the principles deemed necessary for a fundamentally fair process for consumers to resolve disputes. Download the full article (free of charge) here.

In the framework of the Henry G. Schermers Fellowship Programme, held this year by Professor S.I. Strong, the Hague Institute for the Internationalisation of Law (HiiL) and the Netherlands Institute of Advanced Studies (NIAS) announce a workshop on the theme ‘Collective Redress in the Cross-Border Context: Arbitration, Litigation and Beyond.’ The workshop aims to explore the various means that can be used to resolve collective legal injuries that arise across national borders. The types of dispute resolution mechanisms to be discussed range from class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation. The workshop will bring together practitioners, academics, and representatives of non-governmental organisations, all of whom have an interest and expertise in public and private resolution of collective redress in the international realm. For the first time, NIAS and HiiL are offering a works-in-progress conference in association with the Henry G. Schermers workshop. This conference is designed to allow practitioners and scholars who are interested in this area of law to discuss their work and ideas in the company of other experts in the field. Confirmed speakers for the Schermers workshop include: Jan Willem Bitter, Simmons & Simmons LLP/Netherlands Arbitration Institute (The Netherlands) Christian Borris, Freshfields/German Arbitration Institute (Germany) Laura Carballo Piñeiro, University of Santiago de Compostela (Spain) Christopher R. Drahozal, University of Kansas (USA) Gregory A. Litt, Skadden, Arps, Slate, Meagher & Flom LLP (USA) Daan Lunsingh Scheurleer, NautaDutihl (The Netherlands) Gerard Meijer, Nauta Dutihl/Erasmus University Rotterdam/PRIME Finance (The Netherlands) Rachel Mulheron, University of London, Queen Mary (UK) Victoria Orlowski, ICC International Court of Arbitration (France) Geneviève Saumier, McGill University (Canada) Garth Schofield, Permanent Court of Arbitration (The Netherlands) S.I. Strong, Henry G. Schermers Fellow, HIIL/NIAS, University of Missouri (USA) The three-day event will be held June 20-22, 2012, at the NIAS site in Wassenaar, twenty minutes outside of the Hague. The event is free to the public, but registration is required. For more information, including the full programme for both the Schermers workshop and works in progress event, see the HiiL website. Questions may also be directed to Professor S.I. Strong at strongsi@missouri.edu<mailto:strongsi@missouri.edu>.  

by Holly Hayes We often receive questions about where to find healthcare mediation training courses. Here is one series of training sessions titled Conflict Engagement for Healthcare Professionals: A Professional Certificate Program that may be of interest. The program is a collaborative project of the Hamline University School of Law’s Dispute Resolution and Health Law Institutes and EHCCO – Emerging HealthCare Communities. Upcoming sessions are: September 20-23, 2012 and November 1-4, 2012 in Minneapolis, MN. The program learning objectives are: Develop a strategic approach to conflict management in healthcare organizations as a means of improving patient safety, creating healthy work environments, promoting accountable care and containing costs Identify frames for engagement, models for understanding conflict dynamics, and strategies for preventing escalation and mitigating the impact of conflict within the healthcare organization Integrate conflict competencies with established healthcare ethical principles and practices Utilize collaborative strategies as a key leverage point for shifting the underlying healthcare culture and creating accountable care Identify recurring patterns of high conflict behavior and adopt strategies for addressing these patterns and their impact on the organization Expand personal capacity for effectively engaging in conflict, building on existing competencies and professional values Demonstrate an enhanced ability to convene conversations to support effective conflict engagement among members of your healthcare community Apply conflict theory and strategies to the development of conflict competent leadership groups and healthcare organizations Identify the role of coaches, conflict specialists and a community of practice in supporting ongoing learning among healthcare professionals   A second training resource, titled: Center for American Nurses Conflict Engagement Portfolio, can be found here . The content of this program was developed by EHCCO. A description of the course, from their website, states: This training program is designed for healthcare professionals who seek additional skills in assessing conflict situations, initiating difficult conversations, responding to strong emotions, and expanding options for effective resolution of disputes within the context of the health care setting. For those who already possess basic conflict engagement skills or training, this program will serve as a refresher course and will further develop existing skills through coached practice. We welcome your comments on effective training you have received in healthcare mediation, conflict resolution or conflict engagement. 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.  

On May 23, 2012, the plaintiffs in Ashley Brigham Patten, et al. v. M. Brett Johnson, et al., (read more about the underlying case here) added JAMS and arbitrator Robert W. Faulkner as defendants. The plaintiffs allege that JAMs and the arbitrator breached their contract by failing to provide a neutral arbitrator. Read the Texas Lawyer article here.