The Texas Attorney General has reportedly joined a bipartisan group comprised of representatives from 56 states and U.S. territories in a call for federal legislation that would prohibit employers from requiring victims of workplace sexual harassment to engage in mandatory arbitration.

Catherine A. Rogers, Professor of Law at Penn State Law and Professor of Ethics, Regulation, and the Rule of Law at Queen Mary, University of London, has published “Arbitrator Intelligence: From Intuition to Data in Arbitrator Appointments,” New York Dispute Resolution Lawyer Volume 11 No. 2 (Spring 2018).

Yesterday, the Financial Industry Regulatory Authority (“FINRA”) published a report stating between 22 and 30 percent of arbitration awards issued through the organization’s forum went unpaid between 2010 and 2016.

In an unpublished opinion, the United States Court of Appeals for the Fifth Circuit has upheld a district court’s decision refusing to vacate an arbitration panel’s unanimous order. 

By Holly Hayes Difficult situations arise every day in the health care setting, between staff and patients, between staff and family members, between physicians and nurses, between staff and administration. In the national bestseller, Getting to YES, a universally applicable method for addressing conflict resolution is offered by Roger Fisher and William Ury. This post, the first in a five-part series, applies this method specifically to healthcare. For example, a health care conflict over signing verbal orders might occur like this: Nurse: Dr. I have your verbal orders noted in the patient’s chart. I wondered when you might be in to sign them, since it is the weekend and I know you said you were going out of town. By the way, I hope you have a great time with your family. What I mean to say is, I just wanted to be sure that the orders are signed within 48 hours. Physician: Nurse, I don’t know why you would question me about signing my verbal orders within 48 hours. I know the rules as well as you do. I would think that knowing me as well as you do, you would know that my patient’s come first and that is what we should both be worried about. Now, I know you don’t want to create any problems, so we can just forget this conversation ever took place. Nurse: Yes, sir. Have a great trip. What happened in this situation? The nurse and the physician engaged in Positional Bargaining. The nurse was soft on the problem. Her goal was agreement, she was willing to make concessions to cultivate the relationship. She tried to avoid a contest of will and yielded to pressure. The physician was hard on the problem. His goal was victory. He demanded concessions as a condition of the relationship. He dug into his position and made threats. He insisted on his position, applied pressure and tried to win a contest of will. Let’s change the game and try the scenario again. This time, both parties will use the principled negotiation method. They will: Separate the people from the problem. Focus on interests, not positions. Generate a variety of possibilities before deciding what to do. Insist that the result be based on some objective standard. Nurse: Dr. I have your verbal orders noted. I heard you say you would be out of town, Did you have a plan for signing these verbal orders as required by the hospital bylaws? Physician: I am out of town, Nurse, and I know your unit has a focused effort on obtaining a signature of verbal orders within the 48-hour requirement. Dr. Y is covering for me and I know he will be on the unit this afternoon. He will be rounding on all my patients. I can send him a text and ask him to be sure to sign the verbal orders this afternoon. Would that be acceptable? Nurse: I will be here this afternoon, too, and I can be sure to ask Dr. Y to sign the verbal orders you just gave me since he is covering for you. That will work for us. Have a great trip, Dr. The principled negotiation method in this situation worked in this way: The focus was the problem – getting the orders signed within 24 hours. The focus was on interests – the nurse wanted her unit to meet the hospital standards; the physician wanted to help her meet the standards and not interrupt his trip. Together, they generated a possibility before deciding what to do – in this case, they generated only one possibility, but could have generated more to find the best solution to the problem. The result was not based on either party’s position, but rather on an objective standard – the requirement of the hospital bylaws. The next post will address strategies for dealing with substantive problems in health care while maintaining good working relationships. We welcome all comments on this post and any suggestions or questions for upcoming posts on this topic. 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.

by Holly Hayes I recently read a healthcare conflict resolution article in FOCUS, the newsletter of the Harvard Medical, Dental, & Public Health Schools. The article begins with the statement, “Everyone in health care, it seems, has a war story about conflict at work.” In an annual one-week intensive immersion course, Leonard Marcus, who directs the program for Health Care Negotiation and Conflict Resolution at Harvard, and his team teach conflict resolution skills to health care leaders from different organizations. The course adapts to health care the basic principles of conflict resolution described in “Getting to Yes” by Roger Fisher, William Ury, and Bruce Patton of the Harvard Negotiation Project. Marcus discusses why conflict in the health care setting is different from conflict in other industries and reviews the ‘Four-step Approach to Problem-solving’ used in the Harvard course: “In health care, we are passionate about what we do, and that’s a plus,” Marcus said. “When passions collide, that same drive can be a source of conflict. The stakes are high–life and death, large amounts of money, big institutions, reputations. Therefore, people fight hard which, ironically, becomes an obstacle in and of itself.” A Four-step Approach to Problem-solving Four negotiation steps developed by the Program for Health Care Negotiation and Conflict Resolution guide minor and major negotiations in health care. The structured multidimensional problem-solving process is called “Walk in the Woods,” after a famous story in which international negotiators at loggerheads over a nuclear arms treaty went for a walk in the woods near Geneva and discovered common interests that led to new solutions. Step one: self interests. Each participant articulates his or her view of key problems, issues, and options. They are encouraged to actively listen, question, and interact with one another. Step two: enlarged interests. The participants reframe their understanding of current problems and possible options with a wider perspective, based on the integrative listening and confidence-building that occurred in step one. Step three: enlightened interests. The group is ready to engage in innovative thinking and problem-solving, generating ideas and perspectives that had not previously been considered. Step four: aligned interests. Participants build common ground perspectives, priorities, action items, agreement, or plans for moving forward. Depending on the scope of the intended objectives, at this point they recognize the tangible contributions and opportunities accomplished through the meeting. Health care professionals at all levels who find themselves in a situation of work conflict can benefit from the “discovery of common interests” — after all, they share the overarching common interest of working together to provide patient’s with high quality care. The Harvard Four-step process can lead parties toward those “aligned interests” and enhanced teamwork. Technorati Tags: Healthcare, ADR, law, mediation 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.