In May, the United States Supreme Court overturned the Supreme Court of Kentucky’s decision in Kindred Nursing Centers Limited Partnership v. Clark, No. 16-32, (May 15, 2017).
Continue reading...Donna Erez-Navot, Visiting Assistant Clinical Professor at Cardozo School of Law and Interim Director of the Cardozo Mediation Clinic, and Brian Farkas, Attorney at Goetz Fitzpatrick LLP and Adjunct Professor of Law at Cardozo School of Law, have published a useful journal article titled “First Impressions: Drafting Effective Mediation Statements,” Lewis & Clark Law Review, Vol. 22, Forthcoming; Cardozo Legal Studies Research Paper No. 529.
Continue reading...The Financial Industry Regulatory Authority (“FINRA”) has requested public comment regarding two proposed amendments to the organization’s arbitration rules.
Continue reading...The United States District Court for the District of Columbia has denied a party’s motion to seal its petition to confirm an arbitration award and two attached exhibits.
Continue reading...The United States Supreme Court has granted certiorari in a case involving the arbitrability of independent contractor agreements.
Continue reading...The California Supreme Court has ruled that private attorney-client communications related to a mediation remain confidential communications protected by California’s Evidence Code even during a legal malpractice lawsuit between the parties. In Cassel v. Superior Ct., No. S178914, (Cal. Jan. 13, 2011) Michael Cassel sued attorneys who represented him during a mediation settlement for malpractice, breach of fiduciary duty, fraud and breach of contract. Cassel alleged that his attorneys induced him to settle for less than the case was worth and less than he said he was willing to accept. The attorneys moved to exclude all evidence of private attorney-client communications made in preparation for and during the mediation, including communications related to mediation strategies and any attempts to persuade Cassel to reach a settlement. A trial court granted the attorneys’ motion. An appellate court reversed the ruling of the trial court reasoning that California’s mediation confidentiality statutes were not intended to protect attorneys against malpractice claims, but instead intended to protect mediation participants. The appellate court stated, The mediation confidentiality statutes do not extend to communications between a mediation participant and his or her own attorneys outside the presence of other participants in the mediation. The appellate majority also ruled that a malpractice suit removed the attorney-client privilege and prevented attorneys from using the confidentiality statutes as a shield against their former clients. Cassel’s former attorneys then appealed to the California Supreme Court. The Supreme Court first turned to the plain language of Section 1119 of the California Evidence Code. The Court noted that in drafting the provision the legislature “broadly provided for the confidentiality of things spoken or written in connection with a mediation proceeding” in order to “encourage the candor necessary” for successful mediation settlements. The Court also relied on an earlier ruling that the plain language of Section 1119 extends protection to all communications “for the purpose of” or “pursuant to” a mediation, including private communications between a disputant and his or her counsel. The Court next clarified that while the term “participant” was not defined in the statute, there was no reason to define the term so narrowly as to include only parties to mediation and exclude their respective legal counsel as separate participants. The Supreme Court disagreed with the appellate court’s holding that a party to mediation and his or legal counsel constituted a single “participant.” According to the California Supreme Court, legal counsel must agree to waive confidentiality protections for communications made under Section 1122 of the California Evidence Code. The Supreme Court also stated, application of the mediation confidentiality statutes to legal malpractice actions does not implicate due process concerns so fundamental that they might warrant an exception on constitutional grounds. According to the court, We therefore conclude that the evidence the trial court ruled nondiscoverable and inadmissible by reason of the mediation confidentiality statutes was not, as a matter of law, excluded from coverage by those statutes on the mere ground that they were private attorney-client communications which occurred outside the presence or hearing of the mediator or any other mediation participant. Instead, such attorney-client communications, like any other communications, were confidential, and therefore were neither discoverable nor admissible — even for purposes of proving a claim of legal malpractice — insofar as they were “for the purpose of, in the course of, or pursuant to, a mediation . . . . The California Supreme Court held Cassel’s private communications with his attorneys related to the mediation were confidential communications protected by California’s Evidence Code and could not be discovered during a legal malpractice lawsuit between the parties. In his concurrence, Justice Chin wrote, The court holds today that private communications between an attorney and a client related to mediation remain confidential even in a lawsuit between the two. This holding will effectively shield an attorney’s actions during mediation, including advising the client, from a malpractice action even if those actions are incompetent or even deceptive. Attorneys participating in mediation will not be held accountable for any incompetent or fraudulent actions during that mediation unless the actions are so extreme as to engender a criminal prosecution against the attorney. (See maj. opn., ante, at p. 28, fn. 11.) This is a high price to pay to preserve total confidentiality in the mediation process. He went on to state the outcome was a matter for the California Legislature, not the courts, to address, Accordingly, I agree with the majority that we have to give effect to the literal statutory language. But I am not completely satisfied that the Legislature has fully considered whether attorneys should be shielded from accountability in this way. There may be better ways to balance the competing interests than simply providing that an attorney’s statements during mediation may never be disclosed. For example, it may be appropriate to provide that communications during mediation may be used in a malpractice action between an attorney and a client to the extent they are relevant to that action, but they may not be used by anyone for any other purpose. Such a provision might sufficiently protect other participants in the mediation and also make attorneys accountable for their actions. But this court cannot so hold in the guise of interpreting statutes that contain no such provision. As the majority notes, the Legislature remains free to reconsider this question. It may well wish to do so. Technorati Tags: ADR, law, mediation
Continue reading...We just found out that our Disputing post
Continue reading...by Holly Hayes The Agency for Healthcare Research and Quality (AHRQ) will hold a subcommittee meeting open to the public on October 26, 2009, to provide advice regarding grant funding for two demonstration projects: Medical Liability Reform and Patient Safety Demonstration Projects (R18) and Medical Liability Reform and Patient Safety Planning Grants (R21). These demonstration projects were announced on September 9, 2009, as part of The Obama Plan. Patient Safety and Medical Liability Reform National Advisory Council (NAC) Subcommittee Meeting Register Now What: Patient Safety and Medical Liability Reform National Advisory Council (NAC) Subcommittee Meeting Date: October 26, 2009, 8:30 a.m. – 4:00 p.m. Where: Holiday Inn at Capitol Hill, 550 C Street, S.W., Washington DC, 20024 For more details, go to: https://www.dbconsultinggroup.net/NACsubcommittee/. Important notice: On Oct. 17, 2009, AHRQ published an early alert summarizing two Funding Opportunity Announcements (FOAs): Medical Liability Reform and Patient Safety Demonstration Projects (R18) and Medical Liability Reform and Patient Safety Planning Grants (R21). Go to Funding Announcements for more information. The Department of Health and Human Services (HHS) is launching a new demonstration initiative to: Test models that improve patient safety and reduce preventable injuries. Foster better communication between doctors and patients. Ensure patients are compensated in a fair and timely manner; and reduce liability premiums. As part of the initiative, the Chair of the Agency for Healthcare Research and Quality’s (AHRQ) National Advisory Council (NAC) will convene a new subcommittee with diverse representation from expert and stakeholder groups to provide advice for the program. The meeting will be open to the public with an opportunity for public comment during the meeting and through Web-based submissions. The subcommittee will take the public comments into consideration when providing advice to AHRQ on the initiative. Registration Select to register for this meeting. Current as of October 2009 Technorati Tags: Tort Reform, Healthcare President Obama, arbitration, 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.
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.