by Peter S. Vogel My friend, Allison Skinner, who co-founded the American College of e-Neutrals with me, attended an interesting panel presented by the E-Discovery Series in the Western District of Pennsylvania on September 6, 2012 entitled “The Role of e-Mediation in Resolving ESI Disputes in Federal Court.” The U.S. District Court for the Western District of Pennsylvania was the first District to create an E-Discovery Special Master Panel last year. Both Allison and I are members of the panel. To become a panelist, an attorney must submit an application, and upon acceptance, attend a four hour orientation program. To date, almost a dozen appointments have been made. The panel last month included Judges Joy Flowers Conti, Nora Barry Fischer, and Mark R. Hornak, and also Rick Lettieri (a Fellow of ACESIN) and Allison. Rich Ogrodowski moderated. I interviewed Allison about the program. Here are the highlights of the interview: Peter: What was the focus of the panel discussion? Allison: The focus was e-mediation and the use of e-neutrals. The first question was “what is e-mediation and how long does it take?” Judge Conti explained that e-mediation uses a mediator to resolve e-discovery disputes in a facilitative manner. Judge Fischer added that the e-mediator may also take an evaluative approach. Judge Conti continued to explain that the process can take one hour or much longer. I added that I am aware of an e-mediation whose process took eight months. It really depends on the issues. I suggest to attorneys that they approach e-mediation as an issue-based process instead of a time-based process like attorneys use for settlement mediation. With incremental discovery, this makes sense. Of course, the e-mediator can be engaged at the outset of the litigation to help the parties develop a discovery plan. Peter: Can the judges appoint an e-mediator? Allison: This question was raised by the panel and the answer is yes. Interestingly, in this district under the e-discovery special master program, the court encourages the special master use mediative skills to resolve issues and with consent the special master can engage in ex parte communications. The panel continued discussing that the parties need to be aware of which “hat” the e-neutral was playing, and if the e-neutral “switched hats” it would require prior consent of the parties. This has not been a problem in this district. However, I pointed out that for strategic reasons, parties may be cautioned going back and forth, especially if witnesses, such as expert witnesses, are participating in the process. Specifically, the parties may want to avail themselves of the confidential veil provided by a mediator where a special master is required to take sworn testimony under Rule 53. Peter: If the Court appoints an e-neutral who pays? Allison: The panel talked about cost. Judge Hornak said it best when he said using an e-neutral was a good “return on investment.” What did he mean? He meant, yes, using an e-neutral creates an additional cost in the case, but it is called pre-trial for a reason because the goal is to get to trial. This means the parties have to get through discovery and being able to focus on what is relevant for discovery reduce motion practice and preserves judicial economy. Spending $5,000 for an e-neutral is a good investment to avoid a $500,000 discovery expedition. Another interesting aspect about costs is cost allocation. Judge Conti succinctly described that she has had the parties split the cost or charge the party who had the resources or discovery. We further discussed the Court purview to reserve the right to reallocate costs at the close of the discovery depending on the behavior of the parties. Peter: Did you discuss other types of e-neutrals besides special masters and e-mediators? Allison: For me, this was the most exciting part of the discussion. In preparing for this panel, a dialogue was started about using court “facilitators” for e-discovery. The facilitator, in this context, is a hybrid between a special master carrying the proverbial stick and the e-mediator carrying the proverbial carrot. The purpose is to improve the value of the meet and confer. We know now that most meet and confers are ineffective, but yet, meet and confers are the critical procedural mechanism to appropriately addressing ESI. To protect the neutrality of the e-neutral, I think the facilitator would need some type of court sanctioned checklist to discuss with the parties. Then the facilitator could certify to the court that the parties met and conferred in good faith on the enumerated ESI issues. This would definitely make the discovery conference more effective, which, in the long run, should reduce discovery disputes down the road. One role of ACESIN is to help jurisdictions develop programs for using e-neutrals that work in that particular jurisdiction. ACESIN looks forward to following this development and offering its resources to evaluate this concept of an e-neutral. Peter: What was the conclusion of the panel? Allison: The conclusion of the panel was e-mediation is a viable tool for resolving e-discovery disputes, and the judges on the panel acknowledged its value as a way to assist attorneys and their clients as they learn to handle ESI. Peter: The use of e-neutrals, whether special masters or e-mediators or even the evolving use of a facilitator continues to grow across the country. Allison and I both enjoy teaching the only training program in the country designed for e-neutrals through the American College of e-Neutrals. [Please contact askinner@acesin.com to request training in your area.]   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 […]

by Holly Hayes The Health Service Journal for Healthcare Leaders, a British publication, posted an article in September 2012 titled “Mediation? Now you’re talking” authored by David Liddle, founder and chief executive of the TCM Group and president of the Professional Mediators’ Association. The post references a survey of 122 National Health Service (NHS) trusts regarding workplace grievances. Survey results indicate “83 per cent are already using mediation to resolve workplace disputes, with 87 per cent of those trusts reporting a significant reduction in the number of grievances. Forty-three per cent of trusts reported a fall in the number of employment tribunals – directly attributable to introducing a mediation scheme.” Evidence from the survey suggests that NHS trusts are using mediation to secure positive outcomes within an increasingly complex and challenging range of conflicts and change processes. Gill Bellord, head of employee relations at NHS Employers, is enthusiastic about the role of mediation. “NHS Employers supports the increased use of mediation in the NHS as an effective means of resolving complaints, managing change and handling workplace disputes. There are benefits in terms of outcomes, maintaining on-going relationships and value for money.” The article mentions cost as an advantage of mediation in the National Health System. Gemma Brown, an employment solicitor at specialist public services law firm TPP Law, stated: “Typically, there are a number of stakeholders involved in a dispute involving an NHS trust. As a consequence of this, legal costs can escalate dramatically. I believe NHS trusts would be wise to explore the possibility of mediation in resolving a dispute both at the outset and throughout the matter as this may prove to be an effective way of resolving differences and as such keeping costs to a minimum.” The Northumbria Healthcare Trust reported estimated savings from mediation. The trust calculated costs of their basic grievance process to be around £1,800 ($2880). This amount does not include the cost of the affect of a grievance on staff morale and work time lost due to stress or affects of conflict on team productivity. By comparison, the average cost of mediation by an in-house mediator is approximately £520 ($830). Examples of where mediation is being used in the NHS include: change processes or re-organizations, the merger of services and staff, patient complaints and the care of seriously ill children. We welcome any comments on how mediation can be used in the healthcare field in the US. 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.

Following are this month’s recent developments in international arbitration law published by the International Law Office (free registration is required to view the articles): United Kingdom: Law governing arbitration has closest connection to law of the seat Brazil: Bumps in the road to infrastructure arbitration Nigeria: Court rules on timeframe for proceedings to enforce arbitral awards USA: District court grants Section 1782 discovery in support of NAFTA arbitration International: Achieving an efficient arbitration process Russia: Supreme Arbitrazh Court rejects alternative (asymmetrical) arbitral clauses Spain: Court rules on action to set aside arbitral award Greece: Is a fully paid award still enforceable under the New York Convention? India: Courts discourage frivolous impleadment of unnecessary parties Switzerland: Comprehensive translation of award not required for enforcement in Switzerland Stay tuned!

The following bills relating to alternative dispute resolution were introduced by the 112nd U.S. Congress. The session convened in Washington, D.C. on January 3, 2011 and will end on January 3, 2013. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action. Bills that passed: Patent Reform Act of 2011 (a.k.a. America Invents Act). The Act provides, among other things that parties to a derivation proceeding may resolve the dispute via arbitration. See Section 135(f). H.R. 1249; Status. H.R. 1249 was signed by President Obama on Sept. 16, 2011 and became Public Law No. 112-29. Department of Defense and Full-Year Continuing Appropriations Act of 2011. Provides, among other things, that “None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 unless the contractor agrees not to—1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” H.R.1473; Status. The Act was signed by the President on April 15, 2011 and became Public Law No. 112-10. Bills still pending: Consumer Mobile Fairness Act of 2011. The bill would amend title 9 of the United States Code to prohibit mandatory arbitration clauses in contracts for mobile service. S. 1652; Status. Disaster Recovery Act of 2011. The bill would create a dispute resolution program to facilitate an efficient recovery from major disasters. S. 1630; Status. Personal Data Protection and Breach Accountability Act of 2011. As introduced, the bill provides that “the rights and remedies afforded by this section shall not be abridged or precluded by any predispute arbitration agreement. S. 1535 IS; S. 1535 RS; Status. Emergency Jobs to Restore the American Dream Act. The bill would create an emergency jobs program during 2012 and 2013. The bill provides that each unit of general local government that is an entitlement community and each State that receives funding under the Act shall agree to the arbitration procedure described in the Act to resolve certain disputes. H.R. 2914; Status. American Specialty Agriculture Act. The Act would create a non-immigrant H-2C work visa program for agricultural workers and provides that any H-2C worker may, as a condition of employment with an employer, be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship. H.R. 2847; Status. Arbitration Fairness Act of 2011. Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, or civil rights dispute. S.987; Status. H.R.1873; Status. Lat year, the ABA sent a letter to the sponsors of the legislation expressing concerns regarding certain specific language in the bill that could inadvertently void existing international commercial arbitration agreements and potentially discourage international commercial parties from engaging in commerce with U.S. parties. Labor Relations First Contract Negotiations Act of 2011. Amends the National Labor Relations Act to require mediation and, if necessary, binding arbitration of initial contract negotiation disputes. H.R.129; Status. Surface Transportation Board Reauthorization Act of 2011. Certain appropriations for the Surface Transportation Board, including requiring the Board to establish a binding arbitration process to resolve rail rate, practice, and common carrier service disputes. S.158; Status. Endocrine Disruptor Screening Enhancement Act of 2011. “In the event of any dispute about an appropriate share or a fair method of determining an appropriate share of applicable costs of the testing requirements in a test order, any person involved in the dispute may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service or a hearing with a regional office of the American Arbitration Association.” H.R.553; Status. Non-Federal Employee Whistleblower Protection Act of 2011. It includes provisions on the nonenforceability of waivers and arbitration of disputes. S.241; Status. National Guard Technician Equity Act. Provides for a technician’s rights of grievance, arbitration, appeal, and review beyond the current stage of the adjutant general of the jurisdiction concerned. H.R.1169; Status. Postal Operations Sustainment and Transformation Act of 2011. Section 401 of the Act includes arbitration and labor dispute guidelines. S.1010; Status. Soledad Canyon High Desert, California Public Lands Conservation and Management Act of 2011. Advises the use of arbitration under Subchapter IV of chapter 5 of section 5 of the USC. S.759; Status. FAA Air Transportation Modernization and Safety Improvement Act of 2011. Requires the FAA Administrator and employee bargaining representatives, if their own negotiations and the services of the Federal Mediation and Conciliation Service (FMCS) have failed to lead to an agreement, to submit their controversy to the Federal Service Impasses Panel, subject to specified procedures, for binding arbitration. H.R.658; Status. S. 223; Status. Medical Care Access Protection Act of 2011 (MCAP Act). The limitations within the act apply to arbitration, and nothing in the act is meant to supersede arbitration. S.197; Status. Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011. Provides that, “whether by arbitration or other means, in any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants.” S.1099; Status. S.218; Status. H.R.5; Status. U.S. Postal Service Improvements Act of 2011. Authorizes arbitration boards to consider the financial condition of the USPS in rendering decisions. S.353; Status. Preventing Homeowners from Foreclosure Act of 2011. Directs the Secretary of Housing and Urban Development (HUD) to implement a competitive grants program for states and local governmental entities to establish mediation programs to assist mortgagors under home mortgages facing foreclosure […]