A bill seeking to establish a Texas Institute of Health Care Quality and Efficiency is currently before the Texas Legislature. Senate Bill 8 was authored by Senator Nelson and filed on February 16, 2011. It seeks “to improve health care quality, accountability, and cost containment in this state by encouraging health care provider collaboration, effective health care delivery models, and coordination of health care services.” The bill was referred to the Senate Health & Human Services Committee on February 17th. The full text of the bill is available here. You may monitor this and other bills as they move through the Texas Legislature here. Disputing’s own Holly Hayes has discussed the role of collaborative healthcare in healthcare conflict resolution and reform many times. You may read some of her more recent posts here, here, and here. Technorati Tags: Healthcare, Texas Legislation

James H. Stark, Professor of Law and Director of the Mediation Clinic at the University of Connecticut School of Law, and Douglas N. Frenkel, Morris M. Schuster Practice Professor of Law and Head of the Mediation Clinic at the University of Pennsylvania School of Law, recently examined empirical research findings on persuasion and its effect on mediation in Changing Minds: The Work of Mediators and Empirical Studies of Persuasion (February 17, 2011), U. of Penn Law School, Public Law Research Paper No. 11-07. Here is the abstract: The use of mediation has grown exponentially in recent years in courts, agencies, and community settings. Yet the field of mediation still operates to a considerable extent on folklore and opinion, rather than reliable knowledge. Mediator attempts at persuasion are pervasive in a wide variety of mediation contexts, yet “persuasion” is, for some, a pejorative word and a contested norm in the field. Perhaps as a result, there has been little, if any, evidence-based writing about what kinds of persuasive appeals might be effective in mediation, how they might operate, and how they might be experienced by disputants. In an effort to begin to fill that void, this article examines empirical research findings on persuasion from such diverse fields as advertising, public health, communications, politics and race relations. It focuses on studies of both indirect or behavioral approaches to persuasion (role reversal, apology, group brainstorming) and different types of direct persuasive appeals (questions vs. statements, more vs. less explicit statements, use of “negative” emotions such as fear and guilt, and sequential vs. straightforward requests for concessions). As almost none of the empirical work on persuasion has involved dispute resolution, the article raises questions about how these social science findings might apply to the work of mediators. Some of the research findings described in this article are unsurprising, while others may challenge common assumptions. Where the research appears at odds with conventional mediation wisdom, the authors discuss its potential implications for ongoing philosophical and skills-based debates in the field. Of particular note, the literature canvassed in this article may cast new light on old debates about facilitative versus evaluative mediation, and the importance of mediators having substantive, as well as process, expertise. The article may be downloaded here (without charge) from Social Science Research Network. We would love to hear your thoughts on the role of persuasion in mediation. Technorati Tags: ADR, law, mediation

As many of you know, the 82nd Texas Legislature is currently in full swing. The following notable bills affecting alternative dispute resolution in Texas were filed this session: Senate Bill 218, authored by Senator Nelson and referred to the Senate Committee on Jurisprudence, relates “to procedures in certain suits affecting the parent-child relationship and the operation of the child protective services and foster care systems.” The bill would affect mediated agreements in family law cases. The full text of the bill is available here. House Bill 911, authored by Representative Berman and referred to the House Judiciary & Civil Jurisprudence Committee, relates “to the application of foreign laws and foreign forum selection in this state.” The bill would affect the application of foreign laws and forum selection provisions in Texas arbitration agreements. You may read the full text of the bill here. House Bill 1240, authored by Representatives Zedler and Flynn, relates “to the application of foreign and international laws and doctrines in this state.” The bill would affect the application of foreign law during an arbitration held in Texas. It has not yet been referred to a Committee. The entire bill is available here. You may monitor bills as they move through the Texas Legislature here. Additionally, you may view individually filed House and Senate bills. The last day of the regular Texas legislative session will be Monday, May 30, 2011. Tags: Texas Legislation, law, ADR, arbitration

by Michael McIlwrath A new law requiring mediation to be used in commercial cases comes into effect in Italy on March 21. It’s been heralded as a significant potential change and, you would think for a country with a famously overburdened court system, heartily welcomed as a caseload-reducing initiative. Proactive local chambers of commerce have been sponsoring initiatives to promote the introduction of mediation, and mediation providers have been gearing up to meet the demand in training and services. In other words, the ground is being prepared for positive change. But this is Italy, where change if often introduced so that things will stay the same, as Tommasi di Lampedusa famously wrote in The Leopard. Italy’s national union of lawyers, the Organismo Unitario dell’Avvocatura, has called for a national strike from March 16 to March 21. As a means of calling for changes in the law, lawyers across the country are being asked to abstain from attending hearings in any civil, criminal, tax, or administrative proceedings, presumably including arbitration hearings, and to send clients letters urging them to sign a form letter of protest. The strike period coincidentally covers a national holiday (March 17-18), so that it effectively extends a long weekend during prime skiing season. Italy’s lawyers may be afraid that ADR really stands for “Alarming Drop in Revenues” (as the old saw goes), as the law imposes a simple procedure by which disputants can try to settle without the use of lawyers, although they are also not prevented from using counsel. But lawyers here also know that there is an inexorable trend towards more efficient dispute resolution procedures, especially mediation. So in order to avoid the drop in revenue, they are not calling for the law to be overturned, but for changes that would substantially cripple it. For example, they are asking for a change that would make mediation optional for litigants rather than obligatory, and another change that would require “technical” (read that “lawyer”) assistance at the mediations. While this might sound like an “only in Italy” story, it’s actually illustrative of the deep hostility towards mediation that we users often face when crossing borders. Yet the strike is hardly bad news for mediation. In fact, it may actually be a sign of health, and the growing uptake of mediation as an alternative to remaining stuck in the courts for years. This fierce reaction – a call for a week-long national strike, even if conveniently extending an existing holiday – shows that mediation is not being ignored. On the contrary, it is being treated as a serious a threat by a constituency with a stake in judicial inefficiencies. In other words, the strike may be itself confirmation of the need for a law requiring mediation. It will be interesting to see the reaction of national bar associations in other countries as mediation gets increasingly introduced in various ways to reduce the caseloads of overloaded legal systems. Technorati Tags: Mediation MICHAEL MCILWRATH is Senior Counsel, Litigation, for the GE Oil & Gas Division in Florence, Italy. His experience in international arbitration includes representing the company in disputes under the rules of various international and regional arbitration institutions and under ad hoc procedures around the world, and in coordinating the activities of outside counsel in domestic court and arbitral proceedings. He has published numerous articles in the fields of international arbitration, mediation, and negotiation, and is co-author, with John Savage, of International Arbitration and Mediation: A Practical Guide (Kluwer Law International). Michael is a member of the European Advisory Committee of CPR, and acted as an industry representative to the European Commission (Justice) in the creation of a European ADR Code of Conduct. He was Chair of the International Mediation Institute (IMI), in 2009. In addition, he was the co-vice chair with mediator Judith Meyer (and chair, Singapore ambassador at large Tommy Koh) of the IMI Independent Standards Committee. He is also a member of the board of directors of the National Center for Science Education, in Oakland, California.