by Holly Hayes The American Journal of Mediation Fifth Edition focuses on mediation in healthcare. Dale Hetzler, Deanne R. Messina and Kimberly J. Smith write about “Conflict Management in Hospital Systems: Not Just for Leadership”. They contend “communication skills and conflict skills will be primary predictors of the organizations ability to progress in both quality improvement and patient safety, and will therefore equip its caregivers and administrators with these skills. For those who do adopt this approach, they can expect lower turn-over, less burnout, increased patient loyalty and lower rates of medical errors.” In keeping with this idea, The American Society for Healthcare Risk Management (ASHRM) has announced its annual conference October 7-10, 2012 in Washington DC. The theme will be ‘“Getting to Zero™: Eliminating Preventable Serious Safety Events”—a multi-faceted patient safety and healthcare risk management initiative that aims at driving down the incidence of preventable serious safety events in healthcare organizations’ to emphasize the role of a single leader in making positive change to reduce preventable safety errors. The ECRI blog posted this comment about the ASHRM annual conference theme: It’s a lofty goal, and an intimidating one: risk managers tend to shy away from absolute statements. Phrases like “never events” make risk managers cringe. Sure, we all want to eliminate, say, wrong-site surgery, but we can’t actually eliminate it, right? All the way to zero? None at all? Evidence is starting to mount that yes, in fact, we can. Through implementation of evidence-based practices, some Pennsylvania hospitals seem to be winning the fight against wrong-site surgery, according to the Pennsylvania Patient Safety Authority. The Authority reported in 2010 on eight hospitals that had each gone at least 64 weeks without reporting a wrong-site surgery and the practices they put in place to accomplish this. Elsewhere, Michigan’s MHA Keystone Center for Patient Safety& Quality has had similar results, most notably with reducing catheter-associated infections. There are lots of reasons to be cautious in interpreting these results. The collaborative programs that yielded these results are time-and resource-intensive; they require sustained attention for the results to last. Sometimes what works in one hospital won’t work in another one. People, being people, are fallible and subject to back-sliding. But the Pennsylvania, Michigan, and other groups give the lie to the idea that “zero” is unattainable. It’s hard, and it’s not easy, but it’s doable. And that’s where “the power of one” part of the ASHRM slogan comes in. For programs like these to be implemented and sustained, someone in each participating organization must champion them. Part cheerleader, part advocate, part cajoler-in-chief, the champion invests in the success of the initiative and makes sure it never drops off the front burner. Who better to be that champion than the risk manager? During Healthcare Risk Management Week, risk managers can highlight similar efforts in their organizations, and all that they do to improve patient safety and reduce the hospital’s liability. And what could be more valuable than that? For more on our posts about conflict management in healthcare, see here. 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 Renée Kolar Motivations for Drafting the Convention At the Round Table of Ministers and Senior Officials Responsible for Physical Education and Sport in 2003 initiated by the United Nations Educational, Scientific, and Cultural Organization (UNESCO), one of the main issues discussed was doping in sport. Paul Marriott-Llyod, Understanding the International Convention against Doping in Sport SHS/2010/PI/H/2, at 2, available at http://unesdoc.unesco.org/images/0018/001884/188405e.pdf. UNESCO was concerned not only with the harmful biomedical effects on the athletes, but also with the way doping destroys fair play and equitable competition and causes irreparable damage to the credibility of sport. Id. at 1-2. UNESCO considers sport as a “powerful vehicle for peace by forging social ties and networks, mutual respect and understanding between peoples” and as an important learning tool for young people, especially children, to learn about fair play, teamwork and cooperation. Id. at 1 An important step leading to the creation of the International Convention Against Doping in Sport (ICADS or Convention) was the adoption of the World Anti-Doping Code (WADC or Code) in March 2003. Id. at 3. The Code establishes a comprehensive framework to protect athletes’ right “to participate in doping-free sport and to ensure harmonized, coordinated and effective anti-doping programmes at the international and national levels with regard to the detection, deterrence and prevention of doping.” Id. at 3. The Code, however, is not legally binding for governments. Rather, the WADC is a non-governmental document that operates in the realm of private or contractual law. Marriott-Llyod at 3. At the UNESCO General Conference in 2003, the decision was made to develop an international convention that would create a binding obligation on states to remove doping from sport. Id. at 3. Entry into Force and Purpose After extensive drafting and consultation meetings involving representatives from over 95 countries, the final Convention was adopted on October 19, 2005. Id. at 3. The United States Senate gave its consent to the Convention on July 21, 2008. 154 Cong. Rec. S6980 (July 21, 2008) available at http://www.gpo.gov/fdsys/pkg/CREC-2008-07-21/pdf/CREC-2008-07-21-pt1-PgS6980-3.pdf. The Convention came into force for the United States one month after the United States deposited its instrument of ratification with the Director-General of UNESCO. UNESCO, International Convention Against Doping in Sport, art. 38, Oct. 19, 2005, available at http://www.wada-ama.org/Documents/World_Anti-Doping_Program/Governments/UNESCO_Convention.pdf [hereinafter ICADS]. The purpose of the Convention is to promote the prevention of and the fight against doping in sport, with a view to its elimination. ICADS art. 1. Where the WADC only applies to members of sports organizations, the ICADS has been designed to coordinate and compel government action allowing for a systemic approach to anti-doping. Marriott-Llyod at 3. The Convention, however, provides flexibility in the approach governments can take to implementation, either by way of legislation, regulation, policies or administrative practices. Id. at 4. Issues the Convention Seeks to Address Availability of prohibited substances. Under the Convention, governments are obliged to limit the availability of prohibited substances and methods in order to restrict their use in sport, including measures against production, movement, importation, distribution, sale and trafficking. ICADS art. 8. Athlete support personnel. Governments are also obliged to adopt measures aimed at prohibiting “athlete support personnel” from facilitating doping of athletes. Id. art. 9. This term refers to any coach, trainer, manager, agent, team staff, official, medical or paramedical personnel working with or treating athletes participating in or preparing for sports competition. Id. at art 2. Nutritional Supplements. Under Article 10, Governments are required to “encourage producers and distributors of nutritional supplements to establish best practices in the marketing and distribution of nutritional supplements, including information regarding their analytic composition and quality assurance.” Doping Control. Article 11 of the Convention, obliges State Parties to provide funding to support national testing programs or assist sports organizations and anti-doping organizations in financing doping controls. Governments are also required to withhold financial support to athletes convicted of an anti-doping rule violation as well as to sports organizations not in compliance with the Code. Id. at art. 11. All doping controls must be consistent with the Code and include no-advance notice, out-of-competition and in-competition testing. Id. at art. 12. The Convention also encourages international cooperation between anti-doping organizations, public authorities and sports organizations. Id. at arts. 13-16. Anti-doping education. Under the Convention, governments are required to support, devise or implement anti-doping education and training programs. ICADS at arts. 19-23. States Parties are called to encourage professional associations and institutions to “develop and implement appropriate codes of conduct, good practice and ethics related to anti-doping in sport that are consistent with the Code.” Id. art. 20. Research. Articles 24-27 of the Convention seek to promote research on anti-doping and the sharing of research results with other State Parties and the World Anti-Doping Agency. Related Posts: 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 […]

by Renée Kolar Since its inception, the United States Anti-Doping Agency (USADA) has won 58 out of 60 arbitrations against athletes who have contested the agency’s sanctions. In federal court, USADA has never been beaten. Justin Gatlin, a sprinter from Florida, enjoyed an ephemeral victory when he was granted a temporary injunction against USADA in June 2008 to lift his suspension for alleged doping so he could participate in the 2008 Olympic Games. The federal court, however, dissolved the injunction four days later because it found it lacked jurisdiction to intervene in USADA’s process. Gatlin v. U.S. Anti-Doping Agency, Inc., 2008 WL 2567657, *1 (N.D.Fla. Jun. 24, 2008). Despite Gatlin’s brief moment of success, there is a lack of precedent of successful legal challenges to USADA. In 2004, Olympic runner Regina Jacobs sued USADA after it found that she doped. Her lawsuit challenged the rules governing the arbitration procedure, not whether USADA’s procedures were unconstitutional as Lance Armstrong now asserts. Jacobs v. U.S. Anti-Doping Agency, 04 Civ. 1163 (BSJ), 2004 WL 5003951 at *1 (S.D.N.Y May 19, 2004). Nevertheless, a federal court dismissed her lawsuit on grounds it lacked jurisdiction to involve itself in a USADA arbitration. Id. at *4. Four years later, track coach Trevor Graham was sanctioned for allegedly providing steroids to athletes and he sued USADA on constitutional grounds. A federal court dismissed his lawsuit explaining that the Ted Stevens Olympic and Amateur Sports Act gave USADA exclusive jurisdiction. Graham v. USADA, No. 5:10-CV-194-F, 2011 WL 1261321, at *6 (E.D. N.C. 2011) Only two athletes have won against USADA in independent arbitration proceedings. Cyclist Jonathan Page was charged with a violation in 2008 for failing to submit a sample after a race in Belgium. The arbitration panel found he had “compelling justification” and that no sanction should be imposed because he was sick and suffered a concussion and other injuries in a race-ending crash. USADA v. Jonathan Page, AAA No. 77 190 16 09 JENF. Sprinter LaTasha Jenkins also succeeded in contesting the agency’s sanctions in 2008. She had tested positive for an anabolic steroid metabolite. The arbitration panel found that her doping samples had been mishandled in the lab in contravention of the International Standards for Laboratories (ISL) and the results should therefore be set aside. USADA v. LaTasha Jenkins, AAA No. 30 190 00199 07. Related Posts: 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 Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.  

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: Comity prevents English courts from issuing anti-suit injunction United Kingdom: Damages for breach of arbitration agreement Hungary: Interpreting new restrictions on arbitration Canada: Canada’s international commercial arbitration statutes under review Netherlands: Standards of reasonableness and fairness may prevail over arbitration agreements Austria: Supreme Court defines limits of arbitration agreements Brazil: Sao Paulo appellate court suspends foreign arbitration proceedings Stay tuned!