During this Memorial Day holiday, I came across a very interesting article by Victoria Pynchon, a graduate of the prestigious Straus Institute for Dispute Resolution. The piece is a well-written personal anecdote about her volunteer work during the past U.S. presidential campaign. The lesson? you don’t have to be persuasive to persuade. Here is an excerpt: Funny, but I wasn’t really trying to convince her of anything. We were women talking over the fence after hanging our laundry or putting our kids to bed. We connected. We had personal history in common with each other and with candidate Obama. We had shared goals and dreams. Here’s the thing. You can’t make this stuff up and you can’t pursue this type of communication for the purpose of changing someone’s mind. But if someone implicitly asks for your assistance in making an important decision, and if your goal is to help her make her decision instead of the decision you want her to make, you will, at a minimum, create common ground. And once you’ve done that, you can accomplish something constructive together, whether that accomplishment is what you had in mind in the first instance or not. The full article is here: Changing Minds Is Easier When Yours Is Open, Los Angeles Daily Journal, May 19, 2009. Technorati tags: ADR, Victoria Pynchon, Los Angeles Daily Journal, persuasion
Continue reading...By Holly Hayes While the use of mediation for conflict resolution is gaining strength in a number of industries, a recent accreditation standard (LD.01.03.01) issued by The Joint Commission is expected to prompt hospitals to explore an expanded use of mediation to manage conflict in the healthcare setting. The new Leadership Standard: Conflict Management Standard LD.01.03.01 became effective January 2009. The overall standard states, “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” Elements of Performance, or how The Joint Commission will score the standard, include: Development of a code of conduct that defines acceptable, disruptive, and inappropriate behaviors; and creation and implementation of a process for managing disruptive and inappropriate behaviors. Mediation is one tool a governing body can approve and a leadership team can implement to manage disruptive behavior among: management and staff, all levels of clinical staff, vendors and hospital staff, governing board members; and patients and staff to name a few. An outside, neutral mediator can be hired or contracted on a contingency/as-needed basis or internal staff can be trained in mediation techniques. By definition, a mediator is impartial and neutral; a facilitator, not a decision maker; and does not advise, evaluate or advocate for any particular resolution. Mediation gives the parties involved the ability to determine the outcome and resolution of their issues. The mediation process is simple, but can have a profound effect on the outcome of a dispute. Both parties share their concerns without interruption. The mediator may then ask questions for clarification and will develop a problem statement to summarize the issues to be addressed during the mediation. At some point, the mediator may meet privately with one or both of the parties and anything discussed privately cannot be shared unless agreed upon by the party and the mediator. Typically, the parties then brainstorm together to develop solutions for their issues. If an agreement is reached, a written resolution is developed which is final and binding when signed by both parties. As stated by the American College of Physician Executives (ACPE) and American Organization of Nurse Executives (AONE), “Disruptive behavior in a health care setting can lead to an unsafe environment for patients.” Mediation can be an effective tool to resolving conflict to enhance patient safety and improve the future working relationship of the parties involved.
Continue reading...As reported this week by the Workplace Prof Blog, a U.S. District Court in Colorado has issued a decision involving arbitration of statutory claims within the context of a collective bargaining agreement. The case is Mathews v. Denver Newspaper Agency, LLP, 2009 WL 1231776 (D. Colo. 2009). Professor Richard Bales’ analysis of the decision is here: First Post-Pyett Case. Previous Coverage: U.S. Supreme Court Enforces Agreement to Arbitrate Discrimination Claims (April 3, 2009) 14 Penn Plaza v. Pyett: Conflicts of Interest (April 6, 2009) Related Posts: Pyett Analysis – Unions Can Waive But what is Clear and Unmistakable?, Sarah Cole, ADR Prof Blog, April 3, 2009. Supreme Court’s Decision in Pyett Collective Bargaining Case Will Have Little Real World Effect, George Lenard, JURIST- Hotline, April 5, 2009. Some Interesting Questions Raised by the Pyett Decision, Philip J. Loree Jr., Loree Reinsurance and Arbitration Law Forum, April 7, 2009. Technorati Tags: arbitration, ADR, law, U.S. Supreme Court, ADE waiver, Age Discrimination in Employment Act of 1967, National Labor Relations Act of 1935, 14 Penn Plaza LLC v. Pyett
Continue reading...[Ed. note: Obama nominated Sotomayor on May 26; see Hispanic National Bar Association Press Release] Ever since U.S. Supreme Court Justice David Souter revealed his plan to retire, speculation of possible President Barack Obama‘s picks to replace him has flooded the blogosphere. SCOTUSblog has been profiling the “shortlist” candidates with an analysis of their opinions that intersect the Supreme Court’s decisions. Here is an excerpt of today’s SCOTUSblog post on Judge Sonia Sotomayor‘s civil opinions. This one involves arbitration. Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008): As part of a settlement alleging that the acting police chief (among others) had violated an officer’s constitutional due process rights, the parties agreed to submit pending disciplinary charges to arbitration. Both the acting chief, Henneman, and another officer, Moskowitz, testified at the arbitration hearing. The arbitrator ruled largely in Rolon’s favor, concluding that neither Henneman nor Moscowitz had testified truthfully or credibly. Rolon then filed suit against the two, claiming that they had caused him anguish, abused their positions, and violated his right to due process. The district court agreed with Henneman that he was entitled to absolute immunity, and the Second Circuit – in an opinion by Judge Sotomayor – affirmed. In the panel’s view, the Supreme Court’s decision in Briscoe v. LaHue, 460 U.S. 325 (1983), providing absolute immunity to police officers who testify at judicial proceedings, applies equally to an arbitration proceeding such as this one, in which Henneman “performed substantially the same function as witnesses in judicial proceedings with nearly identical procedural safeguards.” Moreover, the panel agreed, Rolon had failed to state a claim against Moscowitz. The full post is here: Judge Sotomayor’s Civil Opinions – Part IV. Related Stories: Who Will Replace Souter? Today’s News: Obama Interviews Judge Diane Wood, ABA Journal, May 20, 2009 What’s in Souter’s Future? Civics, for Starters, Wall Street Journal, May 20, 2009. ATL Poll: Who Should Replace SCOTUS Justice David Souter?, Above the Law, May 1, 2009. Technorati Tags: ADR, law, arbitration, Sonia Sotomayor, Barack Obama, U.S. Supreme Court
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.