by Holly Hayes On November 17, 2010, the Centers for Medicare & Medicaid Services (CMS) established the CMS Innovation Center. The Center will “examine new ways of delivering health care and paying health care providers that can save money for Medicare and Medicaid while improving the quality of care.” The Innovation Center will consult stakeholders across the health care sector including hospitals, doctors, consumers, payers, states, employers, advocates, relevant federal agencies and others to obtain direct input on its operations and to build partnerships with those that (are) interested in its work. The organization will also test models that include establishing an “open innovation community” that serves as an information clearinghouse of best practices in health care innovation. The Center will also work with stakeholders to create learning communities that help other providers rapidly implement these new care models. “For too long, health care in the United States has been fragmented-failing to meet patients’ basic needs, and leaving both patients and providers frustrated. Payment systems often fail to reward providers for coordinating care and keeping their patients healthy reinforcing this fragmentation,” said Donald Berwick, M.D., CMS Administrator. “The Innovation Center will help change this trend by identifying, supporting, and evaluating models of care that both improve the quality of care patients receive and lower costs.” The new website will be updated in the coming months. You may subscribe at the site to receive the RSS news feed or updates by email. 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. Technorati Tags: Mediation
Continue reading...The Dallas Court of Appeals has overturned a district court’s refusal to compel arbitration in two related attorney-client dispute cases. In BDO Seidman, LLP v. J.A. Green Development Corp., 05-09-01520-CV (Tex. App. – Dallas, Nov. 9, 2010) and Sidley Austin Brown & Wood, LLP v. J.A. Green Development Corp., 05-10-0008-CV (Tex. App. – Dallas Nov. 9, 2010), real estate development company Green sought tax advice from BDO Seidman and Sidley Austin predecessor Brown & Wood which included utilizing a distressed debt tax strategy. Green entered into a tax consulting agreement with BDO Seidman which contained an arbitration clause. Green also engaged Brown & Wood to draft a tax consequences opinion. The agreement between Green and Brown & Wood contained an arbitration provision as well. After Green implemented the tax strategies and recommendations of both BDO Seidman and Brown & Wood, the Internal Revenue Service (IRS) informed the company that the distressed debt strategy employed was an illegal tax shelter and its deductions would not be allowed. The IRS also assessed substantial penalties, fines and interest against Green. Green filed suit against BDO Seidman and Brown & Wood’s successor, Sidley Austin, alleging various claims, including fraud and malpractice. After separate hearings, both BDO Seidman’s and Sidley Austin’s motions to compel arbitration were denied. In BDO Seidman, the Dallas Court of Appeals considered three issues: whether the Federal Arbitration Act or New York law controlled, whether Green’s claims fell under the arbitration agreement, and whether the arbitration agreement was unenforceable due to unconscionability. The Dallas Court relied on several New York cases to reach a conclusion that the agreement did not contain the necessary “enforcement language” to trigger enforcement under New York law. The court then held that the arbitration agreement was broad and clearly encompassed the claims brought by Green. Finally, the court held that Green’s claims were properly left to an arbitrator because they did not allege fraud in the creation of the arbitration agreement but rather were allegations of bad acts in the formation of the parties’ consulting agreement. In Sidley Austin, the court considered three unconscionability arguments set forth by Green. Green’s first two arguments were based on theories of fraud and duress with regard to the engagement agreement. The court noted that the misrepresentations alleged by Green went to the entirety of the agreement and arbitration provisions are generally severable and enforceable aside from other provisions of a contract. Green also argued that Sidley Austin “did not explain the advantages and disadvantages of arbitration to Green before entering into the agreement.” Green failed to make other arguments against the validity of the arbitration agreement, however, and the court found that the terms were neither so unusual nor so one-sided as to be facially unconscionable. The court then held that it was an abuse of the trial court’s discretion to deny Sidely Austin’s motion to compel arbitration. In both cases, the Dallas court reversed and remanded the lower court’s order with instructions for the trial court to compel arbitration. Earlier this year, Disputing blogged here about a case in which the Houston Court of Appeals [14th] enforced an attorney-client arbitration agreement. Technorati Tags: ADR, law, arbitration
Continue reading...S.I Strong, Associate Professor of Law at the University of Missouri and contributor to this blog, recently wrote an interesting article entitled From Class to Collective: The De-Americanization of Class Arbitration, Arbitration International, Vol. 26, No. 4, 2010. In the article, Professor Strong considers in detail what new forms of group arbitration will likely arise in the future. Here is the Abstract: Opponents to international class arbitration (also known as ‘class action arbitration’ or ‘classwide arbitration’) frequently characterize the procedure as a ‘ “uniquely American” device’ and take the view that the procedure never could or never should expand beyond the United States. However, a growing number of commentators believe that large-scale group arbitration can or will spread beyond US borders, although that does not necessarily mean that the procedures adopted will or should be the same as those used in US-style class arbitrations. This article considers what these new forms of group arbitration – described herein as ‘collective arbitration’ to mirror terminology used to describe collective redress in national courts – will look like in terms of procedure. The discussion also includes analysis of certain potential problem areas, using analogies to the American Arbitration Association (AAA) Supplementary Rules for Class Arbitration as a guide, and addresses the likely enforceability of awards arising out of such actions under the New York Convention. The article will appear in the December issue of Arbitration International. A draft version is currently available here (without charge) from Social Science Research Network. Other papers by Professor Strong can be found here. Technorati Tags: ADR, law, arbitration
Continue reading...On October 27th, 48 new mediators were sworn in to the State of Nevada Foreclosure Mediation Program (FMP). This brings the total number of authorized FMP mediators in Nevada to 293. The FMP was created by Assembly Bill 149 during the 2009 Nevada Legislature session. According to a June 21, 2010 fact sheet: The FMP applies to residential properties located in Nevada that are owner occupied and the primary home of the owners. Additional eligibility requirements include a Notice of Default (NOD) and Election to Sell that was filed with the County Recorder on or after July 1, 2009. Homeowners that received a NOD prior to July 1, 2009 and meet the other requirements listed above may agree with their lender to opt into the FMP upon written agreement to the FMP Administrator. Under the program, an eligible homeowner has 30 days after receiving a NOD to request mediation. A nonrefundable mediation fee of $200 and a “Financial Statement and Housing Affordability Worksheet” are also required from the homeowner. Once a lender receives notice that a homeowner has elected to participate in the FMP, it must participate in good faith in the mediation. After the lender pays an additional $200 mediation fee, Nevada Supreme Court Rules require that a mediation take place within 135 days. Within 10 days after a mediation concludes, the mediator must file a Mediator Statement with the FMP. If not satisfied with the outcome of mediation, either party may petition for judicial review within 15 days of receiving the Mediator Statement. Between July 1, 2009 and June 30, 2010, 79,232 Notices of Default were reported for all properties across Nevada, 8,738 FMP mediations were requested and 4,212 FMP mediations were completed. 46% of mediations completed resulted in the homeowners remaining in their homes and 89% ended with a result other than foreclosure. Prior to being sworn in, the 48 new mediators attended a two and a half day training session which focused “on the foreclosure and modification process, mediation skills and FMP procedures. The mediators consist of Nevada attorneys and professional mediators.” You can read the entire article from the Nevada Judiciary here. Over the last few months, Disputing discussed the mid-year statistics for the Third Circuit Court of Hawaii’s Foreclosure Mediation Pilot Project here, state-mandated foreclosure mediation in Florida here and Connecticut’s Home Foreclosure Mediation Program here. Technorati Tags: ADR, law, mediation
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.