Last week, the U.S. Supreme issued its decision on Granite Rock v. Teamsters, No. 08-1214 , June 24, 2010. Justice Thomas wrote the majority opinion, joined by Chief Justice Roberts, Justices Scalia, Kennedy, Ginsburg, Breyer, and Alito. Justices Stevens and Sotomayor concurred in part and dissented in part. In Granite, the responder is a local union (Local) supported by its parent international (IBT). The petitioner is Granite Rock (Granite), employer of some of Local’s members. The case is about Granite’s claims against Local and IBT for economic damages arising out of a strike. The parties had reached a collective bargaining agreement (CBA), however, they disagreed about the date the CBA was formed and who should decide that question. Granite contended that the agreement was ratified on July 2 (containing non-strike and arbitration clauses) while Local argued that it was on August 22. The Court held that a district court, not an arbitrator, should decide the CBA ratification date. The court noted that “[t]he CBA requires arbitration of disputes that ‘arise under’ the agreement. The parties’ ratification-date dispute does not clearly fit that description.” Technorati Tags: law, ADR, arbitration
Continue reading...By Holly Hayes The May/June edition of the Physician Executive Journal (PEJ) provides a step-by-step approach for reporting adverse events to patients. The seven-step approach is based on principles used in the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health. A summary of each of the seven steps recommended include: Step 1: Information gathering Prior to any meeting with the patient or family, it’s critical to gather as much information about the serious event as possible. A thorough investigation and review of the incident should be conducted in collaboration with risk management. Step 2: Identify stakeholders The next step is to identify those individuals who will participate in the meeting. We want to get the right people to the table. It is likely that there will be two or three members of the family present at the meeting, including the patient. The number of hospital representatives at the meeting should not significantly exceed the patient and his/her family. This may create the perception of a power differential and possibly be perceived as “bully” tactics. The meeting should generally not include legal representation from the patient and his/her family because the discussion is designed to be informational in nature. In addition, cases that meet the definition of a serious event do not necessarily meet the legal definition of malpractice. Step 3: Communicating the goal The meeting should start with introductions by all of the participants and the role and responsibilities of the staff… (and) should state the purpose of the meeting: “Our mission is to provide the highest quality of care to all of our patients. We take this very seriously. If we have an outcome that is not optimal, then we look very carefully at the care that we provided, and ask ourselves if we could have done better. In this case, there was a complication during the hospitalization. We looked into our processes with a multidisciplinary team. We believe that there may have been measures we could have taken to maximize the chances of success. When we believe this may be the case, we report these events to the state and meet with the family to discuss any mutual concerns.” Step 4: Active listening After the problem has been identified, the next step is to ascertain the self-interests or concerns of the patient and/or family. The Chief Medical Officer/Vice President of Medical Affairs (CMO/VPMA) should express a sincere interest in wanting to hear about their perceptions of the care rendered. This will require active listening. The family may be angry, confused, or sad. This is the opportunity for them to express their concerns and vent some of their frustrations. This may be difficult for the physician to hear, but all of the staff must be active listeners and demonstrate empathy and concern for the patient’s self-interests. The initial goal is for the family to build confidence in those around the table. The CMO/VPMA must create a “safe zone” for the family that allows them to express themselves without reprisal. Step 5: Seeking agreement At this stage, the CMO/VPMA should start to elicit areas of agreement. The family should be asked if there were positive experiences about the care rendered. Were there individuals who gave them confidence and helped anchor them during a difficult time? Agreements about the positive aspects of care should be reviewed and reinforced. The family should be asked if there were aspects about the care that they disagreed with, or found less than optimal. Concerns about the quality of care may be categorized into several areas based on agreements and disagreements. Step 6: Finding solutions The CMO/VPMA should ask the family how the care team could have done this better. Having the patient participate in the corrective action plan will add value and generate buy-in to any solutions formed. Of course, the solutions must be feasible. Step 7: Giving and getting The parties should reach agreement on the proposed corrective action items. In many ways, this is a “give” and “get” process. For the family, there was communication of information, the commitment by the hospital and staff to improve their performance, and an apology that the care delivered did not meet their expectations. For the hospital, the hospital is able to “get” conflict resolution, reduce risk for litigation, and restore trust in their partnership with the community and the families. Seeking out these mutual gain options is important in order to redefine success. The interests and motives should not only be aligned, but the family’s participation in the process will add value to the solutions proposed. If the patient and family view the process positively, then they will tend to embrace new achievements favorably and, most importantly, as fair. The process by which a solution is found is important for both the family and the CMO/VPMA. Each will have to justify any alignment in self-interest and “give-and-take” with their respective constituencies. For more information on the Harvard Program for Health Care Negotiation and Conflict Resolution, see here. We welcome your comments on this approach to communicating with patients about adverse events. 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 Richmond Times reports the latest on the tobacco settlement agreement: Financially pressed states might have to return $1.1 billion to Big Tobacco this year, if a review finds the states aren’t trying hard enough to keep a 12-year-old legal settlement from hurting the companies too much. This summer, states and the nation’s Big Three tobacco firms will begin arbitrating a dispute over 2003 payments made under the settlement, the companies have disclosed in financial filings with the U.S. Securities and Exchange Commission. Sums ranging from $705 million to $1.1 billion for each of the subsequent years also are headed for arbitration. And that’s on top of the fact that the money actually paid to the states has run as much as $2.2 billion a year less than the sums touted when the settlement was signed, a Richmond Times-Dispatch review found. At the heart of the arbitration dispute is the roughly 54 cents a pack the settlement currently costs Big Tobacco. The money is intended to repay states for the costs of caring for sick and dying smokers over the years — but only a few states use the money for that, or for the tobacco cessation and prevention programs public-health advocates hoped the settlement would fund. Read the rest of the article here. Also, find a database with figures on how much each state received and how they spent the money here. Technorati Tags: arbitration, ADR, law
Continue reading...By James M. Gaitis With the issuance of the United States Supreme Court’s decision in Rent-a-Center, West, Inc. v. Jackson, the foundational principle of party autonomy in arbitration has suffered yet another blow. In essence, and as was fairly and pejoratively described in what may well be Justice Stevens’ last opinion (dissenting, as it was), the majority’s “breezy” and “fantastic” decision in Rent-a-Center, West decrees that that even when a separately documented arbitration agreement is clearly part and parcel of an integrated contract, that arbitration agreement must be viewed as a separate, stand-alone contract. What follows, according to Justice Scalia and the four joining conservative justices, is the conclusion that such an arbitration agreement not only is wholly separate from the primary contract but, also, that each independent “agreement” within the arbitration agreement is, itself, a severable agreement that must be challenged separately by a party who asserts that the arbitration provision is unconscionable and thus unenforceable. In other words, and as odd as it seems, the Court ruled that a general assertion that an arbitration agreement is void or voidable will not suffice to raise the question whether sub-provisions within that arbitration agreement are enforceable. In Rent-a-Center, West, this wholly unexpected and inexplicable ruling resulted in a determination that Jackson had waived his right to assert that a court, rather than an arbitrator, should determine whether the arbitration agreement was enforceable, the waiver supposedly occurring because Jackson had not focused on a sub-provision in the arbitration agreement that purported to grant that authority to the arbitrator. The issue at hand was narrow, to be sure. But the Court’s resolution is significant in that it plainly illustrates the conservative majority’s willingness to purport to base its decisions on the precepts of party autonomy when it suits the majority’s ideological objective and to utterly disregard those same precepts when the majority’s ideological objective so requires. The recent string of Supreme Court decisions illustrates this regrettable trend. And why does that matter? It matters because the sanctity of freedom of contract is implicated and because the legislative history of the Federal Arbitration Act (FAA) shows that the FAA had no purpose other than to enforce the parties’ intent when they enter into arbitration agreements: [The FAA] creates no new legislation, grants no new rights, except a remedy to enforce an agreement in commercial contracts and admiralty contracts. 65 Cong. Rec. 1931 (1924) (Rep. Graham). * * * * * The legislative history of the [FAA] establishes that the purpose behind its passage was to ensure judicial enforcement of privately made agreements to arbitrate. Dean Witter Reynolds v. Byrd, 470 U.S. 213, 219 (1985). And any lawyer (and, hopefully, many a non-lawyer) knows that the essence of any contract is what the parties “intended.” So let us take the quickest of looks at three prominent examples of recent Supreme Court split-decisions on the topic of arbitration and see where they lead. The first is the Court’s decision in Hall Street in which the majority held that a contractual agreement that an arbitrator’s award may be judicially reviewed for legal error is not enforceable under the FAA. Party autonomy be damned (and the legislative history of the FAA ignored). The second is Stolt-Nielsen in which the majority held that the issue whether an arbitration agreement permits class arbitration must be resolved by a strict contract law analysis regarding whether the parties actually intended to permit class arbitration. Hail to party autonomy. And now the third, Rent-a-Center, West in which the majority holds that when a separate arbitration agreement that is part of an integrated contract contains a separate clause granting the arbitrator authority to decide arbitrability issues, the question whether a party legally agreed to such an arbitration agreement as a whole (including the ancillary arbitrability jurisdiction clause) is irrelevant. This breezy and fantastic holding emasculates the law of contractual intent and, in so doing, casts aside the very purpose of the FAA, which was nothing more than to enforce the intent of the parties when they did, of their own free will, enter into an agreement to arbitrate. In keeping with the principle of party autonomy, the clear rule under the FAA should be that if a party cannot be held to have agreed to an arbitration agreement or clause, the party cannot be held to have agreed to subparts of that same agreement or clause. Other commentators have fairly noted that the majority’s decision in Rent-a-Center, West is baffling and, by its nature, not easy to quickly digest and explain. And, I believe, there are reasons why that is so. One primary reason is that Justice Scalia’s opinion craftily exploits a clear anomaly in arbitration law—the principle of competence-competence, as embedded in American domestic arbitration law by the Supreme Court’s decision in Prima Paint. Prima Paint simply provides that arbitration agreements within broader contracts are “severable” from the main contract, the consequence being that when a party asserts that a base contract is void or voidable, that issue is for the arbitrator to resolve but that when a party more narrowly asserts only that an arbitration agreement embedded within a general contract is void or voidable, that issue is for the court to decide. Justice Scalia exploits this principle of severability to now find that an arbitration agreement can have many sub-arbitration agreements embedded within it and that each such embedded agreement is severable or potentially severable such that each such sub-provision must be discretely challenged by a party to ensure they have preserved their standing to raise that issue. As Justice Steven’s puts it, the majority “plucked” a narrow aspect of the arbitration provision and treated it as a stand-alone agreement, the net effect being that the principle of severability has become multi-tiered or multi-layered, like Russian “nesting dolls.” Prima Paint itself, of course, is based on a fictional concept that is difficult to reconcile with long-existing contract interpretation law. That fiction is that when a party alleges that it did […]
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.