The International Chamber of Commerce (ICC) will host its conference on International Arbitration in Latin America in Miami on November 11-13, 2012. The conference will include discussions on recent developments on arbitration in Latin America and is expected to attract 400 participants from 30 nationalities. Who should attend? Practicing lawyers, corporate counsel, arbitrators, mediators, academics and professionals involved in the conduct of business in Latin America and the Caribbean who wish to increase their understanding of international commercial arbitration in the region. Find out more information here.  

In a new article, Empowering Settlors: How Proper Language Can Increase the Enforceability of a Mandatory Arbitration Provision in a Trust, forthcoming in REAL PROPERTY, TRUST AND ESTATE LAW JOURNAL, available now in SSRN, Professor S.I. Strong discusses the increasingly important topic of trust arbitration. Here is the abstract: With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes a slightly different approach to the question of trust arbitration in that it analyzes the extent to which a settlor can overcome the various legal challenges facing mandatory trust arbitration through appropriate use of language in the trust. In so doing, this Article not only discusses the opinions of both courts and commentators, it also analyzes the effectiveness of various model arbitration clauses specially drafted by two of the world’s leading arbitral institutions, the American Arbitration Association (AAA) and the International Chamber of Commerce (ICC), for use in trusts. Although these provisions have been in existence since 2003 and 2008 respectively, no commentator has yet discussed them in any depth. This Article fills that gap, providing settlors and trustees with practical, yet theoretically sound, advice on how to draft an enforceable arbitration provision in a trust. In so doing, the Article also introduces a number of relevant judicial opinions that have not yet entered the legal literature. The full article can be downloaded (for free) here. Other papers by Professor S.I. Strong are here.

Fulbright & Jaworski, LLP has recently published its 2012 International Arbitration Report, Issue 1. The issue includes the following topics: China-Related Arbitration Agreements, a Comparative Study of the French and English Arbitration Acts, Regulation 11/2001 Reform Update, and Section 1782 Case Update. You may download the Report (for free) here.

By Holly Hayes An article in the New England Journal of Medicine titled, “Shared Decision Making — The Pinnacle of Patient-Centered Care” by Michael J. Barry, M.D., and Susan Edgman-Levitan, P.A. discusses the importance of the active engagement of patients and their families in health care decision-making. Healthcare is so fragmented and complex in the current environment, patients are often overwhelmed by the treatment options available. Caregivers are often not aware of their patient’s values and how those values impact the medical decisions that must be made. When more than one viable treatment or screening option exists, clinicians can facilitate shared decision making by encouraging patients to let clinicians know what they care about and by providing decision aids that raise the patient’s awareness and understanding of treatment options and possible outcomes. Decision aids, which can be delivered online, on paper, or on video, can efficiently help patients absorb relevant clinical evidence and aid them in developing and communicating informed preferences, particularly for possible outcomes that they have not yet experienced. Just as there are randomized trials of tests and treatments, there have been randomized trials of shared decision making supported by patient decision aids. According to the latest Cochrane review of 86 trials published through 2009, the use of patient decision aids for a range of preference-sensitive decisions led to increased knowledge, more accurate risk perceptions, a greater number of decisions consistent with patients’ values, a reduced level of internal decisional conflict for patients, and fewer patients remaining passive or undecided.5 The use of decision aids is also associated with patients’ choosing prostate-specific–antigen tests for prostate-cancer screening and major elective surgery less often, which suggests that shared decision making could be a tool to help address the problems of overdiagnosis and overtreatment.5 Through shared decision making, clinicians can help patients understand the importance of their values and preferences in making the decisions that are best for them. Experience has shown that when patients know they have options for the best treatment, screening test, or diagnostic procedure, most of them will want to participate with their clinicians in making the choice. This interest is shared by patients worldwide, as demonstrated by the recent release of the Salzburg statement endorsing shared decision making, authored by representatives from 18 countries. In our post Patients Engage in Their Own Care More Often When Encouraged by Providers, we discuss the traditional provider/patient roles and how conflict engagement skills can be of benefit to healthcare providers in engaging patients in a shared decision model. We welcome your thoughts on shared decision making in healthcare. 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.