By Holly Hayes “The era of ‘one patient, one doctor’ is coming to an end, and so today’s trainees will practice in collaborative teams rather than individually,” Carl Snyderman, MD, David Eibling, MD and Jonas Johnson, MD state in their article “The Physician as Team Leader: New Job Skills Are Required” in Academic Medicine, a journal of the Association of American Medical Colleges (AAMC). Atul Gawande, MD agrees with the concept of the physician as team leader when he responded to a comment during his Live Chat on the New Yorker blog in August, “Yes, your doctor should be the “team captain.” – Yes, your doctor should be willing and able to explain what’s going on: to find out from your mother-in-law and the family what your priorities are; – to formulate a plan based on the most effective known means to achieve those priorities and explain it to you each day; – to get everyone together in following through on that plan; – then report on how that plan has gone and make adjustments with you.” Why are physicians the best team member to be the captain? The AAMC article states: “The physician is a facilitator and communicator and must make decisions about the allocation of health care resources, evaluate the evidence for best practices, and monitor quality of care.” What skillset is needed for physicians to lead a team of healthcare workers to improve quality, increase availability of healthcare and reduce costs? Snyderman, et al believe: The next generation of physicians will need to have an expanded skill set that borrows from the curricula of other disciplines, specifically training in business practices. Executive training provides the necessary leadership skills and fosters strategic thinking. Knowledge of health care economics is important for optimal utilization of limited resources and alignment of health care practices with business principles. An understanding of process control in industry can be applied to maximizing the efficiency of health care dollars and to monitoring outcomes with enhanced quality of care. Training in human resources provides the people skills necessary to manage a team and communicate effectively with a diverse patient population. Decision modeling results in a more analytical approach to complex decisions and the incorporation of factors (quality of life, risk valuation) that are important to patients. Service marketing teaches a patient-oriented approach that maintains focus on the patient (consumer) rather than on the profit. A business school approach fosters a “big picture” mentality that challenges physicians to think about the societal issues of health care that have widespread benefits. 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 Jeremy Clare Even though Lance Armstrong decided on August 23rd not to proceed to arbitration with the United States Anti-Doping Agency (“USADA”), the process for sanctioning Mr. Armstrong has not been completed. There are remaining procedural steps that must occur before the sanctions are finalized. Under Article 8.3 of the World Anti-Doping Code (the “Code”), USADA is obligated to send Mr. Armstrong, the International Cycling Union (“UCI”), and the World Anti-Doping Agency (“WADA”) a reasoned decision of the actions taken. Article 8.3 does not impose a deadline for USADA to release the details behind the sanctions, but USADA’s CEO, Travis Tygart, has said that he is confident that the parties will receive the information, in writing, within the weeks to come. UCI released a statement on August 24th explaining that they will wait until USADA releases the details before further commenting. After USADA releases the details behind the sanctions, any of the parties – Mr. Armstrong, UCI, and WADA – can appeal the sanctions, according to Article 13.2.3 of the Code, to the Court of Arbitration for Sport (“CAS”). UCI had initially claimed jurisdiction over the case, but it remains to be seen if UCI will appeal USADA’s sanctions now that Mr. Armstrong has decided not to arbitrate the case. If appealed, the case will be presented to arbitrators from CAS and CAS’s Procedural Rules will apply. Those arbitrators could affirm USADA’s sanctions, overrule USADA’s sanctions, or they could give UCI jurisdiction over the case. If USADA’s sanctions are not appealed, USADA will rely on UCI and the organizations that run the races (e.g. the Amaury Sports Organization runs the Tour de France) to actually enforce the sanctions. Under the “Mutual Recognition” rule in the Code, those organizations are obligated to enforce USADA’s sanctions. Related Posts: USADA Case against Lance Armstrong | USADA Announces Lance Armstrong’s Lifetime Ban from Sport and Forfeiture of Titles, Disputing, August 24, 2012 Armstrong v. Tygart | Austin Federal Court Dismisses Lance Armstrong Lawsuit Against USADA, Disputing, August 20, 2012 Armstrong v. Tygart | Federal Court to Rule Before August 23, Disputing, August 10, 2012 Armstrong v. Tygart | Hearing is Today, Disputing, August 10, 2012 Armstrong v. Tygart | Lance Armstrong Responds to USADA’s Motion to Dismiss, Disputing, August 8, 2012 Armstrong v. Tygart | Fairness of Arbitration Procedure, Disputing, August 8, 2012 Armstrong v. Tygart | Jurisdiction, Disputing, August 7, 2012 Armstrong v. Tygart | Existence of Agreement to Arbitrate, Disputing, August 6, 2012 The International Convention Against Doping in Sport of 2005, Disputing, August 2, 2012 USADA Case against Lance Armstrong | USADA’s Successful Arbitration Track Record, Disputing, August 1, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part VI | Right to Appeal to the Court of Arbitration for Sport (CAS), Disputing, July 30, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part V |USADA Expedited Track, Disputing, July 26, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012 Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012 Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012 Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012 Jeremy Clare is a law clerk at Karl Bayer, Dispute Resolution Expert. Jeremy received his J.D. from the University of Texas School of Law in 2012 and received a B.A. from the University of South Carolina where he studied political science.  

by Don Philbin The wide-spread use of arbitration clauses in consumer credit card agreements was one of the reasons for creating the Consumer Financial Protection Bureau (CFPB). One of the by-products of the Credit Card Accountability Responsibility and Disclosure Act of 2009 is an extensive database of credit card agreements. Professor Chris Drahozal takes a rigorous look at that data to test arbitration assumptions in the most recent issue of the Journal of Empirical Legal Studies (JELS), one of my favorite publications. Drahozal and Professor Theodore Eisenberg, who also edits JELS, have examined hard data on arbitration usage – with divergent views – for years. A summary of their back and forth is included in my article, Litigators Needed to Advise Transaction Lawyers on Litigation Prenups, in The Advocate last year. In Arbitration Clauses in Credit Card Agreements: An Empirical Study, Drahozal examines the agreements of 298 credit card issuers as they existed in 2009. Because all issuers were required to submit these forms of agreement, the database represents the universe of agreement terms rather than the usual sampling of the largest banks. With that comprehensive data set, the authors found that 82.9% of the issuers do not use arbitration clauses, which would suggest a panoply of options for those not wanting to agree to arbitration. But when the data is sliced by dollar value, 95.1% of credit card debt is covered by arbitration clauses. Big bank issuers include arbitration clauses much more frequently than smaller, and often mutually owned, issuers.   Class Action Environment Biggest Factor in Arbitration Usage Decision Perhaps more interesting, and instructive for clause drafters, are the factors that pushed the decision to include an arbitration clause one way or the other. The principal factor appears to be perceived susceptibility to class action lawsuits. Since defaulting debtors rarely show up to contest issuer collection actions, and there is no security on which the issuer can foreclose pre-judgment, arbitrating credit card defaults can impose higher transaction costs on the issuer. Not only does the issuer have to arbitrate, it often has to take the extra step of confirming the award in court. On small debts, a court default could be the more expeditious, one-stop path. “All else equal, then, the more frequently an issuer expects to be a plaintiff the less likely it will use an arbitration clause,” according to Drahozal. The fact that big bank issuers are willing to absorb that extra cost in many small collection matters indicates that the inclusion of an arbitration clause is a defensive measure. If it were simply a matter of collecting the card debt, a court default would often be more economic. So Drahozal concludes that, “Arbitration reduces the likelihood that an issuer will be a defendant in a class action, reducing both expected process costs and liability.” Consistent with that finding, Drahozal also found that issuers were 11-14% less likely to use arbitration clauses when located in states that have found class arbitration waivers to be unenforceable. The data set used for the study was compiled at the end of 2009, prior to the U.S Supreme Court’s holding that courts must enforce arbitration agreements even if the clause requires that consumer complaints be arbitrated individually rather than on a class-wide basis. AT&T Mobility v. Concepcion (2011). So the data before Concepcion indicated that arbitration use and enforceability of class arbitration waivers correlate, which predicts a post-Concepcion increase in arbitration clause and class arbitration waiver usage.   Other Factors in the Arbitration Usage Decision Beyond class action considerations, other factors influenced whether issuers included arbitration clauses: Arbitration No Arbitration Issuer specializes in credit card lending over commercial and other types (increases probability of use by 0.6-0.7%) Issuer has a riskier credit card portfolio Issuer and cardholder share a common bond where loan officers know more about their members and their risk profiles(increases probability of use by 2.6-3.7%) Issuer makes more credit card loans Issuer relies more heavily on fee income from the cards 50% of banks include arbitration clauses Issuer less likely to use arbitration clause when mutually owned (i.e., credit unions) Issuer and cardholder share a common bond where loan officers know more about their members and their risk profiles Issuer is more diversified across lending products, including secured loans Mutually owned issuers are 29-30% less likely to include arbitration provision 3.8% of credit unions include arbitration clauses   Conclusions Drahozal finds that consumers have more credit card options that do not require arbitration than is commonly believed. But since many consumers may not qualify for credit union credit cards, either because of the required trade-off with other terms or because they need higher risk products, Drahozal posits that further regulation of arbitration in credit card agreements could reduce the supply of such high-risk products. While Concepcion is expected to result in an increase in arbitration clause and class arbitration waiver usage, especially among banks, the Drahozal concludes that not all credit card issuers will follow suit. And the biggest factor seems to be the size of the issuer – the perception that big banks are bigger class action targets drives arbitration usage up in credit card agreements. 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 […]

In Dealer Computer Servs. v. Michael Motor Co., No. 11-20053 (5th Cir. Aug. 14, 2012) Dealer Computer Services (“DCS”) provides hardware maintenance, software support, and computer hardware to automobile dealer Michael Motor Company (“MMC”). Their hardware and service contract contained an arbitration clause requiring the parties to resolve disputes in accordance with the Commercial Rules of the American Arbitration Association (“AAA”). A dispute arose in 2006 and MMC filed a demand for arbitration. Each of the parties chose one arbitrator and the two arbitrators selected a third one (Ms. Carol Butner). The panel found unanimous for DCS. MMC moved to vacate, alleging “evident partiality” by Butner. Specifically, MMC alleged that Butner did not disclose that she was an arbitrator on the Venus Ford arbitration panel, which considered similar contract language and heard from the same damages expert as in the MMC proceedings. The district found that “because of her prior experience serving on the Venus Ford panel, Butner’s conduct created a “reasonable impression of bias” and rose to the level of “evident partiality” as interpreted in Positive Software Solutions, Inc., v. New Century Mortg. Corp., 476 F.3d 278 (5th Cir. 2007) (en banc).” The Fifth Circuit disagreed with the district court conclusions. The Fifth Circuit found that Butner’s disclosures were sufficient to put MMC on notice of a potential conflict. Furthermore, the Fifth Circuit said that because MMC failed to before the rendering of the arbitration award, its objections to Butner’s partiality were waived. Accordingly, the Fifth Circuit vacated the district court’s orders and remanded with instructions to confirm the arbitration award.