Charlotte Garden, Co-Associate Dean for Research and Faculty Development and Associate Professor of Law at Seattle University School of Law, has authored an interesting paper titled “Disrupting Work Law: Arbitration in the Gig Economy,” 2017 University of Chicago Legal Forum 205 (2018).
Continue reading...Professor Frederic G. Sourgens, Director of the Oil and Gas Law Center at Washburn University School of Law, has published “Value and Judgment in Investment Treaty Arbitration,” Journal of Dispute Resolution, Vol. 2018, No. 1, 2018.
Continue reading...The Court of Appeals of Texas in Corpus Christi has ruled that a wrongful death lawsuit should be submitted to arbitration.
Continue reading...S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, Senior Fellow at the Center for the Study of Dispute Resolution, and Adjunct Professor at Georgetown University Law Center, has published “Arbitration of Internal Trust Disputes: The Next Frontier for International Commercial Arbitration?,” To be published in final form in ICCA Congress Series No. 20, “Evolution and Adaptation: The Future of International Arbitration” (Wolters Kluwer, 2019 Forthcoming); University of Missouri School of Law Legal Studies Research Paper No. 2018-14.
Continue reading...Imre S. Szalai, Judge John D. Wessel Distinguished Professor of Social Justice at Loyola University New Orleans College of Law, has authored “Reconciling Fault Lines in Arbitration and Redefining Arbitration Through the Broader Lens of Procedure,” 18 Nev. L.J. 511 (2018); Loyola University New Orleans College of Law Research Paper No. 2018-07.
Continue reading...By Brett Goodman Under the Texas ADR Act, by either the motion of the court or a party, a pending dispute may be referred to mediation except when that dispute is subject to the Federal Arbitration Act. In this referral, an “impartial third party” must be appointed to mediate. To qualify for an appointment as an impartial third party, a person must have completed a minimum of forty hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court making the appointment. See Tex. Civ. Prac. & Rem. Code Ann. § 154. The trial court has discretion in deciding that mediation is appropriate for the case and may consider several factors in the decision, including: the nature of the dispute, the complexity of the issues, the number of parties, the extent of past settlement discussions, the posture of the parties, whether there had been sufficient discovery to permit an accurate case evaluation, the status of the case on the docket, and whether a referral would be appropriate at that particular time. Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 150 (Tex. App. 2000). The Decker decision laid out a number of the considerations that come along with the trial court’s discretion. Decker v. Lindsay, 824 SW2nd 247, 250 (Tex. App.-Houston [1st District] 1992, no writ) The court may compel parties to attend mediation, but that is the furthest extent of its authority in that it cannot force a resolution to materialize from this mediation. Only when a party objects to mediation with a reasonable basis for doing so can a court be stripped of its power to refer a dispute to mediation, so a court can compel mediation without issue if it finds a party will not have a reasonable basis for objection. Using the Decker framework along with the factors of use to a trial court in referring a dispute to mediation, courts on a case by case basis have made a fairly predictable determination of whether or not mediation is appropriate with a trend that the court’s discretion is broad. See In re Magallon, 09-07-438CV, 2007 WL 2962934 (Tex. App. Oct. 11, 2007) Although a trial court ordered mediation to be in good faith in In re Magallon, if a trial court does find mediation appropriate, both parties are compelled to attend. The court of appeals could not say that the trail court abused its discretion in finding the party who did not appear at mediation in contempt and neither party made an objection. Regardless of a dispute over the referral to mediation, the referral compels the parties to attend pursuant to the trial court’s discretion. After the issue of compelling parties to meet in mediation has been resolved, it is true that a trial court may only compel the parties to meet but not more. Decker, 824 S.W.2d at 250. Thus, the court did say the judge in Decker overstepped the authority of a trial court by requiring not just that the parties meet, but that they negotiate in good faith and attempt to reach a settlement. Doing more than just compelling the parties to meet would not comport with the Texas ADR Act. Also, a court may, in its discretion, decide that mediation would not be of benefit to the parties and thus not refer the case to mediation. Walton, 23 S.W. 3d at 150. Where a law firm brought suit against a former client for failure to pay legal dues, the client demanded mediation, claiming that it is required unless the trial court determines it inappropriate. Although the trial court did not make a determination of inappropriateness, there was a dispute over who would be the mediator. The court declared, “We may reasonably infer that the trial court found that referral for [mediation] would not have benefited the parties and would only have served as a delay.” In Texas, a trial court may refer a case to mediation at its discretion, but it is not forced to when it would find mediation would not be of benefit in the situation. Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.
Continue reading...By Holly Hayes One month ago, we started our health care conflict resolution series (see Part I, Part II, Part III, and Part IV) focusing on the Roger Fisher, William Ury Getting to YES principled negotiation method involving: 1. Separating the people from the problem. 2. Focusing on interests, not positions. 3. Generating a variety of possibilities before deciding what to do. 4. Insisting that the result be based on some objective standard. Our final post in this series focuses on “using objective criteria.” In almost any negotiation, no matter how many options are generated to “split the pie,” there is still going to be a conflict of interests. As seen in our previous posts, the physician wants to continue his vacation and the nurse on the unit wants him to sign his verbal orders per hospital policy, the radiology director wants to decrease patient complaints and the technician wants to be heard so he can be part of the solution, the physician wants to sell his practice for a high price and the hospital wants to purchase it for a low price, the ED manager wants housekeeping to help with the cleaning and housekeeping wants to work within its budgeted number of staff. In each situation, there are objective criteria that can be used to decrease the likelihood that the negotiation will become just a contest of wills and the ongoing relationship can be saved. Objective standards allow both parties to commit to reaching a solution based on principle, not pressure. In our examples, objective criteria could be hospital policy, regulatory standards, industry standards, standards used by local hospitals or physician groups or budgetary constraints. As the parties begin the process of identifying objective criteria, they can: 1. Jointly search for reasonable criteria. 2. Be open to the most appropriate standards and how they can be applied. 3. Never yield to pressure from the other party, but defer to objective standards. Pressure can take many forms: bribes, threats, manipulative appeals to trust or a simple refusal to back down. The principled response in each of these situations is the same: invite the other party to state their reasoning, suggest objective criteria that may apply and finally, refuse to budge except on the basis of objective criteria. This is the final post in our series on using the principled negotiation method in health care conflict. Look for future posts on Disputing on utilizing proven conflict resolution techniques specifically in health care. We invite your comments on this post and any suggestions for upcoming posts. Technorati Tags: Healthcare, ADR 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...By Holly Hayes On Feb. 23, the American Medical Association and 76 other medical societies wrote a letter to President Barack Obama and congressional leaders asking them to adopt legislation to reduce unnecessary medical lawsuits. “‘Defensive medical procedures, prompted by the threat of litigation, add substantial costs for individuals, private and public payers,” the letter stated (read the letter here). At President Obama’s health care summit on Feb. 25, Dr. Coburn, an obstetrician-gynecologist cited estimates by Thompson-Reuters, that the “U.S. health system wastes at least $600 billion a year because of poorly coordinated care, fraud, frivolous lawsuits and a lack of preventive care.” Right after the summit, on March 3, President Obama outlined a revised version of his comprehensive health care reform proposal (read article by the American Medical News here) . The plan includes a section specifically on medical liability calling for expanding medical liability alternatives by adding $50 million to a $23 million state pilot project managed by Health and Human Services Secretary Kathleen Sebelius (see our post on this pilot project here ). We welcome your comments on the continuing discussion of health care reform and medical liability. Technorati Tags: Healthcare, ADR 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...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.