The International Bar Association (IBA) has approved a new version of its Rules on the Taking of Evidence in International Arbitration. The revised version (discussed here) was approved with minor amendments. The revised Rules will apply to all arbitrations in which the parties agree to apply the IBA Rules after May 29, 2010. Among the key updates and revisions are the following: An obligation on the tribunal to consult the parties at the earliest appropriate time with a view to agreeing on an efficient, economical and fair process for taking evidence. It also includes a non-exhaustive list of matters which such ‘consultation’ may address. Greater guidance to the tribunal on how to address requests for documents or information maintained in electronic form – so-called ‘e-disclosure.’ Similarly, the revisions give greater guidance as to requests for documents in the possession of third parties. Expansion of confidentiality protections respecting both documents produced pursuant to document requests and documents submitted by a party in support of its own case and documents introduced by third parties. Greater clarity respecting the contents of expert reports and in particular the requirement to describe the instructions given to the expert and a statement of his or her independence from the parties, legal advisers and tribunal; the revised IBA Rules also foresee the provision of evidence in reply to expert reports. An obligation on witnesses to appear for oral testimony at a hearing only if their appearance has been requested by any party or the tribunal; the revised IBA Rules also provide for the use of videoconference or similar technology. More specific guidance respecting issues of legal impediment or privilege, including the need to maintain fairness and equality particularly if the parties are subject to different legal or ethical rules. Incorporation of an express requirement of good faith in taking evidence coupled with an empowerment of the tribunal to consider lack of good faith in the awarding of costs. Deletion of the word ‘commercial’ from the title, in recognition of the potential equal application to ‘non-commercial’ arbitrations such as investment treaty-based disputes. The final version is available for download here. Technorati Tags: ADR, law, arbitration
Continue reading...By Holly Hayes How big is the issue of conflict in healthcare? The accrediting body for hospitals, The Joint Commission, issued standard (LD.01.03.01) in January 2009 recognizing the need to better manage conflict in the healthcare setting. The Standard states: “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” During on-site accreditation visits, The Joint Commission reviewers “score” the Standard by reviewing the hospital’s code of conduct which defines acceptable, disruptive, and inappropriate behaviors; and by examining the hospital’s process for managing disruptive and inappropriate behaviors. The need to manage conflict in the healthcare setting is not new. Much has been written about disruptive behaviors creating breakdowns in the teamwork, collaboration and communication needed to deliver high quality patient care. A study by The Institute for Safe Medication Practices (ISMP) found that forty percent of clinicians have remained passive or kept quiet during patient care events rather than confront a known intimidator. A survey conducted by the American College of Physician Executives (ACPE) published in November 2009 indicates there is still work to be done in this area. According to anonymous responses to a national survey of 13,000 physician and nurse executives, ninety-seven percent experienced unprofessional outbursts and overreactions, with the majority saying these happened several times a year and sometimes weekly. In this time of rising healthcare costs, hospitals who fail to address disruptive behavior face staff turnover issues that can cost up to 1.5 to 1.8 times the amount in salary dollars to hire and train a skilled nurse. A December 2009 article in Trustee magazine stated nurses consider disruptive behavior to be the most important factor influencing their morale and job satisfaction. In one survey, as many as thirty-one percent of nurses knew of at least one of their nurse colleagues who left a hospital because of disruptive behavior. Most important is the effect on patient safety and the quality of care. The ISMP survey found that nearly fifty percent of clinicians felt pressured to administer or dispense a drug even though they had serious concerns about its safety. Forty percent were too intimated to question medication orders given by a clinician with a reputation for abusive behavior. Another survey stated that seventeen percent of hospital staff believed disruptive behavior had been the cause of an adverse event. Safety issues arise when something negative has occurred or because something positive hasn’t been done. In each case, it requires trust for staff or patients to report the issue. How does a hospital create a culture of trust and healthy communication? A spectrum of healthcare conflict resolution might begin with actions to Prevent an incident from occurring. Hospitals typically put in place policies, training, monitoring and accountability as well as a code of conduct to prevent disruptive behavior and promote acceptable behaviors. In an effort to prevent disruptive behaviors among healthcare providers, The Joint Commission recommends that health care organizations take 11 specific steps, including the following: Educate all health care team members about professional behavior. Hold all team members accountable for modeling desirable behaviors, and enforce the code of conduct consistently and equitably. If an incident of disruptive behavior occurs, the hospital must then Respond. Hospitals may be organized around a Department of Performance Improvement (PI), a Department of Quality or a Department of Risk Management or a combination of two or more to respond to conflict and manage the resolution process. To respond to conflict, The Joint Commission recommends hospitals: Establish a comprehensive approach to addressing intimidating and disruptive behaviors that includes a zero tolerance policy; strong involvement and support from physician leadership; reducing fears of retribution against those who report intimidating and disruptive behaviors; empathizing with and apologizing to patients and families who are involved in or witness intimidating or disruptive behaviors. Develop a system to detect and receive reports of unprofessional behavior, and use non-confrontational interaction strategies to address intimidating and disruptive behaviors within the context of an organizational commitment to the health and well-being of all staff and patients. The final step in the spectrum of healthcare conflict management is to Measure Performance to pro-actively focus on areas of greatest need. Hospitals can review data sources including: patient satisfaction surveys, patient complaint data, staff satisfaction surveys, exit interviews, physician satisfaction surveys, incident reports, culture of safety surveys and lawsuits to focus efforts to prevent conflict from arising. Where does mediation fit in a process for conflict management? If a possible spectrum of conflict resolution in healthcare begins with actions to Prevent conflict, implements a process to Respond to conflicts that do occur and finally Measures Performance over time to identify areas for improvement, where does mediation fit? Mediation skills can be pro-actively taught to all hospital staff to prevent conflict. Mediation skills can be implemented as a tool to decrease escalation of a dispute. Outside mediators or internal staff can conduct mediations as a non-confrontational strategy to address disruptive behaviors, improve the working relationships of the parties involved and enhance teamwork and patient safety. Physician and nurse executive respondents to the ACEP survey were asked to give solutions to decrease disruptive behavior. They listed: setting clear expectations, implementing consistent enforcement and focusing on teamwork. Training staff in mediation skills can help set expectations of and provide tools for appropriate behavior. An outside, neutral mediator can be hired or contracted on a contingency/as-needed basis or internal staff can be trained in mediation techniques to be part of a process to implement consistent enforcement of appropriate behavior. By its nature, mediation has a critical place in healthcare as organizations focus on increasing patient safety by building relationships and enhancing trust and teamwork among caregivers. [Ed. note: the contents of this post appeared first in Texas Mediator, Volume 24, Number 3, Spring 2010.] 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. […]
Continue reading...Via the ADR Prof Blog, we learned that on May 19, the U.S. Securities and Exchange Commission (SEC) published for public comment a FINRA Rule Change Relating to Amending the Codes of Arbitration Procedure to Increase the Number of Arbitrators on Lists Generated by the Neutral List Selection System. Find the text of the proposed rule change here. The comment period expires on June 16, 2010. All Comments should refer to File Number SR-FINRA-2010-022 and may be submitted: At the SEC’s website: http://www.sec.gov/rules/sro.shtml Via email to: rule-comments@sec.gov , or Via regular mail (in triplicate) to: Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. Technorati Tags: ADR, law, arbitration
Continue reading...[Ed. note: Following find interesting comments about AT&T v. Concepcion, a case pending before the U.S. Supreme Court. Read more about the case here. These comments were first posted at Paul Lurie’s excellent listserv and we are reprinting them with the author’s permission.] By James M. Gaitis Ultimately, we are faced with at least four different possible outcomes for consumer arbitration provisions containing class preclusion clauses. These potential outcomes depend both on what the Supreme Court does and, perhaps, on what lower courts might to on a case-by-case basis: Class preclusion clauses are deemed unenforceable (e.g., are unconscionable, violate public policy, etc.) and the remaining arbitration provision is deemed severable and enforceable (the result here is a class arbitration); Class preclusion clauses are deemed unenforceable and the remaining arbitration provision is not severable and thus, also, is unenforceable (the result here is no arbitration without a post-dispute agreement to arbitrate) (this, by the way, was what it appears the Federal District Court for the Northern District of California recently decided and then affirmed in a post-Stolt-Nielsen ruling in McArdle v. AT&T Mobility, 2010 WL 1875812 (May 10, 2010)) ; Class preclusion clauses are deemed enforceable but that makes the remaining arbitration provision unconscionable and thus unenforceable (the result here is no arbitration without a post-dispute agreement to arbitrate); and Class preclusion clauses are deemed enforceable as is the remaining arbitration provision (the result here is a standard, non-class arbitration). At this point in time, it is less than likely that the Supreme Court would resolve all of these issues. Rather, at most I would think we can expect the Court to possibly make a sweeping ruling on the enforceability of class preclusion clauses but not on associated issues regarding severability of the remainder of the arbitration clause or generic issues regarding the unconscionability of general consumer arbitration provisions. I think the correct balancing of federal preemption considerations in consumer cases (and by that I mean balancing both sides of the issue–e.g., the Casarotto type cases and the AT&T Mobility type cases) should, in the abstract, most often result in No. 3, above–i.e., that class preclusion clauses are, indeed, enforceable because they plainly evidence a party’s unwillingness to engage in a particular type of arbitration, but that the remaining consumer arbitration provision in many if not most cases will be (on a case-by-case basis) unconscionable because, in the absence of a class arbitration, it does not afford a realistic remedy. Having said that, I would guess (as Jim Madison suggests as a possibility) that when all the dust clears (whenever that might be) the present composition of the Court is likely to lead us toward result No. 4. One observation about preemption and the class preclusion clause: I believe that the application and enforcement of a type of federal substantive contract law (a concept I believe Tom Stipanowich and perhaps others have addressed) in the context of FAA preemption is not only appropriate but, also, necessary. I say that because in the absence of such a federal omnipresence, states could too easily circumvent the primary objective of the FAA–i.e., to enforce “agreements” to arbitrate. That is what the Montana legislature and then the Montana Supreme Court did in Casarotto. And, on the flipside of the analysis, that is what any state legislature or court could attempt to do in the context of unconscionability issues. Indeed, the Montana legislature easily could have stated that any arbitration contract that does not contain 20 point bold lettering in Red type, warning consumers of the presence of an arbitration provision, “is deemed unconscionable, per se.” The point here is that while state contract interpretation law understandably should determine what the parties intended when they signed an arbitration agreement, that law should not be used, or permitted, to subvert the primary rule that the parties must literally and freely agree to resolve their disputes through a specific dispute resolution procedure. As heinous as a class preclusion clause may be, the one thing that cannot be said about it is that it evidences an agreement to resolve disputes through class arbitration. Hence my view that result No. 3., above, is the most consistent with the precepts underlying the FAA and with the Court’s decisions to date. Technorati Tags: law, ADR, arbitration James M. Gaitis is the former Director of the International Dispute Management Programme at the Centre for Energy, Petroleum & Mineral Law & Policy, University of Dundee, Scotland, where he remains a member of the Global Faculty. He is the Editor-in-Chief of the second edition of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration (J. Gaitis, C. von Kann, R. Wachsmuth forthcoming Fall 2010) and the author of numerous law review articles on the topic of arbitration, several of which have been repeatedly cited to the United States Supreme Court and lower state and federal appellate courts. Over the past twenty years he has served on a diverse array of arbitration rosters, including as a Fellow of the College of Commercial Arbitrators, a Fellow of the Chartered Institute of Arbitrators, and as a panelist on the AAA Complex Case Panel and the Energy/Oil & Gas Panels of the AAA and CPR. He received his BA from the University of Notre Dame and his JD from the College of Law at the University of Iowa where he was an editor of the Iowa Law Review. He is also the author of two published novels. He may be reached via email at: gaitis1@aol.com.
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.