Disputing contributor Don Philbin launches the full version of Picture It Settled, a new tool for providing predictive analytics for the negotiation of litigated cases, at LegalTech New York today. According to the press release: Picture It Settled software is a highly intelligent predictive analytics tool that guides inside and outside counsel through the negotiation process, based on deep data harvested from thousands of cases. The online-accessible technology was created by a team of attorneys and statisticians led by Don Philbin, a nationally recognized attorney-mediator based in San Antonio. This full launch follows the success of Picture It Settled Lite, the popular mobile app released in 2011. Using neural networks, probability theory and behavioral patterns, Picture It Settled can predict what an opponent will do, ultimately saving parties’ time and money by streamlining negotiations. The software’s unique Settlement Prophet application estimates when parties are likely to settle and for what amount with high accuracy. Picture It Settled® doesn’t replace honed intuition or legal expertise. Instead it guides decision-makers by quickly modeling anticipated reactions. Users benefit from three key features: (1) scenario planning, (2) negotiation move planning, and (3) offer projections. Case results entered into the Picture It Settled dataset range from fender benders to intellectual property disputes in various jurisdictions, with settlements from $250 into the hundreds of millions of dollars. Built with security features, Picture It Settled is layered with Gazzang for security levels equal to those used to protect health and financial records. We invite you to learn more about Pictured It Settled or download the iTunes App.

Kristen Blankley, Assistant Professor at the University of Nebraska College of Law has authored an interesting article entitled Taming the Wild West of Arbitration Ethics, Kansas Law Review, Forthcoming. In her article, Professor Blankley examines legal ethics in the arbitral forum. Here is the abstract: The boundaries of ethical behavior in litigation are well known and understood in the legal community. Attorneys and parties cannot lie under oath, are prohibited from destroying documents, and are prohibited from tampering with witnesses. The criminal law and rules of attorney ethics have long prohibited these practices in order to ensure that the public system of dispute resolution (i.e., court) is fair by ensuring truthfulness and the preservation of relevant evidence. Whether these rules apply in the arbitral forum, however, is unclear, at best. The criminal laws dealing with perjury and tampering of witnesses and documents generally only apply to “official proceedings,” and arbitration likely does not fall within the definition of an “official proceeding.” The revisions to the ethics rules do cover the arbitral forum, but the criminal law has been slow to catch up. This paper recommends revising the definition of “official proceedings” to include the arbitral forum. Such revision would make the arbitral forum fairer, make the ethical rules and the criminal law more congruent, and it would fill an “accountability” gap that arises by operation of the increased operation of arbitral immunity laws. Revising the criminal law in such a manner, on a state-by-state basis, would create uniformity across the nation and hold accountable those (attorneys and non-attorneys alike) for engaging in conduct that is properly punishable in the litigation forum. The article is available to download at the Social Science Research Network.

The American College of Healthcare Executives (ACHE) updated their policy statement on Impaired Healthcare Executives in November 2012. We posted here on impaired physicians,but have not posted previously on impaired executives. The Joint Commission (TJC) requires that all hospitals have a process in place to identify and assist staff physicians with health and behavior problems. On its website, the ACHE Statement of the Issue begins: The American College of Healthcare Executives recognizes that impairment is a significant problem that crosses both societal and professional boundaries. For healthcare executives, impairment can be defined as a condition that limits or diminishes a healthcare executive’s ability to perform his or her responsibilities and duties in accordance with the prevailing professional standards and expectations. Some examples of causes of impairment include alcoholism, substance abuse, chemical dependency, mental/emotional instability, cognitive impairment and illness. The Policy Position references the preamble of the ACHE Code of Ethics which states, “Healthcare executives have an obligation to act in ways that will merit the trust, confidence, and respect of healthcare professionals and the general public. Therefore, healthcare executives should lead lives that embody an exemplary system of values and ethics.” The updated policy statement asserts healthcare executives have the following ethical and professional obligations: Maintain a personal health that is free from impairment. Refrain from all professional activities if impaired. Seek assistance, whenever there is uncertainty, in understanding whether impairment exists. Expeditiously seek treatment if impairment occurs. Urge impaired colleagues to expeditiously seek treatment and to refrain from all professional activities while impaired. Support peers who identify healthcare executives in need of help. Intervene and report the impairment to the appropriate person(s) should the colleague refuse to seek professional assistance and should the state of impairment persist. Review applicable legal obligations to report the impairment to ensure compliance with federal and state requirements (such as those required by licensing boards). Recommend or provide, within one’s employing organization, confidential avenues for reporting impairment, and either access or referral to treatment or assistance programs. Consider establishing an organizationwide program or committee that coordinates a reporting process and also reviews, addresses and prevents impaired executives. Recognize that individuals who have successfully received treatment for impairment and are no longer deemed impaired should be considered for employment opportunities for which they are qualified. Assist recovering colleagues when they resume their professional activities. Urge the community to provide information and resources for assistance and treatment of alcoholism, substance abuse, mental/emotional instability and cognitive impairment as needed and as appropriate. Raise the awareness of key stakeholders (such as employees, governing board members, etc.) on impairment issues and the resources available for assistance. A study published in the Journal of the American Medical Association (JAMA) conducted by researchers from Massachusetts General Hospital found more than 31 percent of the 2,000 doctors who responded don’t turn in colleagues who are impaired or incompetent. The study surveyed nearly 3,000 doctors across multiple specialties. The survey reported that 17 percent of surveyed doctors had encountered an incompetent or impaired colleague in the past three years. Only two-thirds actually turned those doctors in and 69 percent of doctors said they had knowledge of the process for reporting a colleague who was compromised.   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.

  Over the course of the past year, we were honored with contributions from a number of the most esteemed law professors and practitioners we know. Some wrote guest-posts, others submitted comments via e-mail, while others made sure we never missed important developments in ADR. We would like to thank our blog contributors for improving Disputing‘s legal scholarship! Special thanks to our regular blogger Holly Hayes, and 2012 interns Renée Kolar and Jeremy Clare. Check out our 2012 blog contributors:   S.I. Strong Currently a Fellow of the Supreme Court of the United States for the 2012-13 term, S.I. Strong is Associate Professor of Law at the University of Missouri and Senior Fellow at the award-winning Center for the Study of Dispute Resolution, having previously taught law at the University of Cambridge and the University of Oxford in the United Kingdom. Prior to joining the faculty at Missouri, Dr Strong was Counsel specializing in international dispute resolution at Baker & McKenzie LLP and a dual-qualified practitioner (U.S.-England) in the New York and London offices of Weil, Gotshal & Manges LLP. Dr Strong has acted in arbitral proceedings under a wide range of institutional rules and is listed as a neutral on various national and international rosters. Dr Strong is the author of numerous works on international arbitration, including the award-winning article, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity? 30 Michigan Journal of International Law 1017 (2009), as well as the books Research and Practice in International Commercial Arbitration: Sources and Strategies (2009) and Class Arbitration and Collective Arbitration: Mass Claims in the National and International Sphere (forthcoming), both from Oxford University Press. Dr Strong, who is qualified as a lawyer at the New York and Illinois bars and as a solicitor of the Supreme Court of England and Wales, holds a Ph.D. in law from the University of Cambridge, a D.Phil. from the University of Oxford, a J.D. from Duke University, an M.P.W. from the University of Southern California and a B.A. from the University of California.   Find Professor Strong’s contributions here.   Allan Scott Rau Alan Scott Rau is the Mark G. and Judy G. Yudof Chair Professor of Law at The University of Texas at Austin School of Law. He received his BA and LLB from Harvard University. Professor Rau teaches and writes in the areas of Contracts and Alternative Dispute Resolution (particularly Arbitration). He is co-author of Processes of Dispute Resolution: The Role of Lawyers (3rd ed., 2002); ADR and Arbitration: Statutes and Commentary (West, 1998), and Cases and Materials on Contracts (West, 2nd ed. 1992), and the author of several articles, including most recently “The Arbitrability Question Itself” (American Review of International Arbitration, 1999); “La Contractualisation de l’Arbitrage: Le Modele Americain” (Revue de l’Arbitrage, 2001), and “All You Need to Know About Separability in Seventeen Simple Propositions” (American Review of International Arbitration, 2003). He serves on the Commercial and International Panels of the American Arbitration Association, and has been a visiting faculty member at the University of Toronto, China University of Political Science and Law in Beijing, Willamette University College of Law, the University of Geneva; and the Universities of Paris-I and Paris-II. Some of Professor Rau’s scholarly papers may be downloaded at the Social Science Research Network. Professor Rau’s posts are here.   Peter S. Vogel Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.   Read Peter’s posts here.   Don Philbin Don Philbin, J.D., M.B.A., LL.M., is an AV-rated attorney-mediator and adjunct professor of law. Philbin has extensive experience and education in the fields of business, law, negotiation, and mediation, and mediates individual and class matters in a range of substantive areas. He teaches academic and professional skill courses at Pepperdine Law’s top-rated Straus Institute for Dispute Resolution and in other programs. Mr. Philbin’s most recent venture is Picture It Settled®, which develops software to help litigants analyze positions and develop successful concession strategies in negotiation. The free app, Picture It Settled® Lite, is currently available on Apple, Android and BlackBerry smartphones. The empirical research arising from this large collection of negotiation patterns also informs his mediation practice, teaching and writing. Don Philbin was one of three Texas mediators listed in the inaugural edition of The International Who’s Who of Commercial Mediation (2011; one of five Texas mediators in the 2012 edition), was recognized as the 2011 Outstanding Lawyer in Mediation by the San Antonio Business Journal, and is repeatedly listed in: The Best Lawyers in America, Texas Super Lawyers, The Best Lawyers in San Antonio, and the U.S. News and Best Lawyers “Best Law Firm” survey. Don Philbin is a charter and executive committee member of the Texas Academy of Distinguished Neutrals, and an elected fellow of the International Academy of Mediators and the American Academy of Civil Trial Mediators. In addition, Philbin was one of the first U.S. mediators certified under the international standards established by the International Mediation Institute. Don’s posts are here.   Rustaum Dubash Rustam Dubash is the head of Penningtons’ commercial dispute resolution team and also head of the India group. He has been a partner at Penningtons since 1998 and has over 25 years of commercial dispute resolution experience. He has been involved in high value UK and cross border litigation and international […]