We got this interesting case from Jeffrey A. Ford, from the Dallas firm of Ford Nassen & Baldwin P.C.: For those who care about Texas jurisprudence dealing with arbitrations, here you will find an opinion issued April 29, 2010, by the 5th District Court of Appeals in Texas. Of interest is the Court’s ruling that the incorporation of AAA Rules in the Contract satisfied the requirement that there be clear and unmistakable evidence of intent to allow the arbitrator to decide issues of substantive arbitrability. While certainly not a new argument, the state courts in Texas (as exemplified by the trial court in this case) have generally been very, very reluctant to give up the gatekeeper role on substantive arbitrability issues. The deadline to file a petition for review of this decision in the Texas Supreme Court is June 14, 2010. Ford Nassen & Baldwin PC represented the prevailing party in this decision. Jeffrey A. Ford Ford Nassen & Baldwin P.C. 8080 N. Central Expressway Suite 1600 LB 65 Dallas, Texas 75206 Phone: 214.523.5120 Fax: 214.521.4601 jaford@fordnassen.com Technorati Tags: law, ADR, arbitration

[UPDATE:] The U.S. Supreme Court decided Rent-A-Center, West v. Jackson on June 21. Find our commentary here: Rent-A-Center, West, Inc. v. Jackson and the Ongoing Assault on Party Autonomy Professor Alan Scott Rau Comments on Rent-A-Center, West Inc. v. Jackson As readers may already know, last week, the U.S. Supreme Court heard arguments on Rent-A-Center, West v. Jackson. The transcript is available here. Question Presented: Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (”FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision? We thought you would like to read some interesting posts about the case: “Formation is a very basic existential analysis”: Thoughts on the Rent-a-Center Oral Argument, Matt Bodie, PrawfsBlawg (April 28, 2010) Oral Argument in Jackson v. Rent-a-Center West, Sarah Cole, ADR Prof Blog (April 27, 2010) Supreme Court Justices Consider Courts’ Role in Arbitration, Tory Mauro, The National Law Journal (April 27, 2010) Rent-An-Arbitrator, Deepak Gupta, Consumer Law & Policy Blog (April 27, 2010) Arbitrating arbitration: who reviews the enforceability of an agreement to arbitrate? Caroline Jackson, SCOTUS Blog (April 27, 2010) Commentary on Rent-A-Center West v. Jackson and Arbitration Unconscionability, Disputing (April 26, 2010) Determining the fairness of forced arbitration provisions, Aaron Tang, SCOTUS Blog (April 25, 2010) U.S. Supreme Court to Hear Arguments in Arbitration Unconscionability Case: Rent-A-Center West v. Jackson, Disputing, with links to all briefs (April 22, 1010) The Mandatory Core of Section 4 of the Federal Arbitration Act, David Horton, Virginia Law Review (April 2, 2010) Should A Company’s Hand-Picked Arbitrator Get to Decide Whether It’s Fair for the Company to Hand Pick the Arbitrator? Deepak Gupta, Consumer Law & Policy Blog (April 1, 2010) Recent Developments in Arbitration Unconscionability, Disputing (March 30, 2010) Contracts Prof Blog Roundup: (in reversed order) Rent-A-Center West v. Jackson II: Respondent’s Brief (April 12, 2010) Introducing Karen Halverson Cross and the Arbitration Roundtable (April 13, 2020) Karen Halverson Cross: Guest Post on Rent-A-Center v Jackson (April 15, 2010) Guest Post by Christopher Drahozal on Rent-A-Center (April 15, 2010) Reply Brief in Rent-A-Center West v. Jackson (April 19, 2010) Guest Post by Karen Halverson Cross on the Rent-A-Center Reply Brief (April 19, 2010) The Next Phase in Challenges to Arbitration Provisions: David Horton in the UCLA Law Review (April 20, 2010) Embarrassment of Riches: Guest Post by David Horton (April 21, 2010) Synopsis of the Rent-A-Center Oral Arguments (April 27, 1020) Choice Quotations from the Rent-A-Center Arguments (April 27, 2010) Karen Halverson Cross: Impressions/comments on Rent-A-Center v Jackson Oral Argument (April 28, 2010) Technorati Tags: law, ADR, arbitration

The ABA Section of Dispute Resolution is sponsoring the Teleconference: Class Action Arbitration After Stolt-Nielsen on Friday, May 14, 2010 at 12:00 – 1:15 PM Eastern Time. The speakers are: Nina Pillard, Georgetown University Law Center (argued the case in the Supreme Court) Chris Curran, White & Case (wrote the brief) Eric Tuchman, General Counsel, American Arbitration Association For more details, click here. To register, click here. Technorati Tags: law, ADR, arbitration

By Holly Hayes An article in the March/April 2010 Patient Safety and Quality Healthcare Magazine by Andrea C. Scobie and D. David Persaud titled, “Patient Engagement in Patient Safety:Barriers and Facilitators” examines the impact of patient engagement in their own care on patient safety. Read more here. The authors give examples of the technical issues in care provision (for example, patient identification, surgical site identification and wound management) that are essential to reduce adverse events and improve patient safety and point to recent studies that have begun to target the patient as an integral member of the care team with an ability to impact the reduction of medical errors. One barrier to patient engagement, of interest to the field of conflict resolution, is: Traditional Patient and Provider Roles The traditional patient-provider relationship has also been identified as an impediment to greater patient participation in patient safety. Three major patient safety studies in the United States (Marella et al., 2007; Waterman et al., 2005; Davis et al., 2008) identified that patients feel less comfortable asking direct and confrontational questions of their providers, such as, “Did you wash your hands?” or asking if the physician could mark their surgical site. Davis et al. (2008) also found that patients are less willing to adhere to patient safety practices that they view as challenging to the healthcare staff’s clinical abilities. This was somewhat mitigated by the healthcare professional’s designation, with more individuals willing to ask challenging questions of nurses than of physicians. Waterman et al. (2005) reported similar results with only 45.5% of the respondents indicating that they would feel comfortable asking medical personnel whether they had washed their hands. Even more shocking was the fact that only 4.5% of respondents actually did ask their care provider if they had washed their hands, indicating a large discrepancy between feeling comfortable to perform an error prevention action and actually performing that action. The traditional patient-physician relationship, in which the physician is perceived to have more knowledge about individual health concerns, is an impediment to patients asking questions of their physician, even if they feel that that their safety might be compromised and that they could play a role in preventing an error. This disconnect might point to broader cultural issues. The authors provide a list of “Facilitators” to break down these barriers and encourage patients to engage in their care provision, with one example being: Provider Modelling One of the most commonly cited facilitators of patient engagement in patient safety is provider behavior or physician modelling. Patients are less likely to engage in behavior that they perceive to be confrontational or challenging. Davis et al. (2007) found that when patients were instructed by a doctor to ask challenging questions of themselves and nurses, patient willingness to ask was significantly increased. Thus, physician instruction and education surrounding the reasons why patients should ask questions may have a significant impact on patient error prevention behaviors. Waterman et al. (2006) found similar results with their survey and suggest physician modelling as an integral part of patient education of patient safety practices. The authors propose that patient safety programs should target patient fears about challenging and insulting their healthcare provider by posting education material in hospital and waiting rooms encouraging patients to ask questions or having providers wear reminder buttons that encourage patients to ask them if they’ve washed their hands (Waterman et al., 2006). Fundamentally, provider modelling and education surrounding the acceptability of asking healthcare providers questions should ultimately lead to greater patient comfort in engaging in these behaviors. Hibbard et al. (2005) also suggest that training patients to be more assertive in their encounters with healthcare providers may lead to greater involvement in error prevention behaviors, as it has previously been shown to enhance patient involvement in their own care and improve care outcomes. This article supports the National Patient Safety Foundation report on the need for medical schools to provide training in patient safety, conflict resolution, and communication skills. See more on our post here. We welcome your comments on this topic. 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.