by Holly Hayes Healthcare Executive, a publication of the AmericanCollege of HealthcareExecutives (ACHE), May/June 2012 issue published an article titled “The Importance of Failing Forward” by Paul B. Hofmann. The title refers to the book Failing Forward (2000) by John Maxwell which asks, what will you do when problems occur, will you fail forward or backward? To explain the fail forward concept, Dr. Hofmann refers to a study of physicians who participated in a simulated medical emergency where they had to choose from uncertain treatment options requiring trial and error. The doctors who paid more attention to their mistakes fared better in the simulation than those who focused on their successes. The study take away? Doctors who learned from their mistakes were better performers over time. Dr. Hofmann lists possible reasons for familiar mistakes in the healthcare environment, including: insufficient or inaccurate information, lack of expert input, time constraints, ignorance of legitimate alternatives, carelessness, political pressure, a conflict of interest, undue haste or a failure to follow established policy and/or external requirements. Many people will simply practice avoidance of these problems or situations rather than recognize them and learn from them. One model organizations might consider when building a culture who learns to ‘fail forward’ has been taught in a one-week immersion course by Leonard Marcus, who directs the program for Health Care Negotiation and Conflict Resolution at Harvard (see more here and here): A Four-step Approach to Problem-solving Step one: self interests. each participant in the course articulates his or her view of key problems, issues, and options. They are encouraged to actively listen, question, and interact with one another. Step two: enlarged interests. The participants reframe their understanding of current problems and possible options with a wider perspective, based on the integrative listening and confidence-building that occurred in step one. Step three: enlightened interests. The group is ready to engage in innovative thinking and problem-solving, generating ideas and perspectives that had not previously been considered. Step four: aligned interests. Participants build common ground perspectives, priorities, action items, agreement, or plans for moving forward. Depending on the scope of the intended objectives, at this point they recognize the tangible contributions and opportunities accomplished through the meeting. Healthcare professionals at all levels will make mistakes. As Dr. Hofmann points out, Maxwell suggests “people who fail backward blame others, repeat the same mistakes and expect never to fail again. In contrast, he describes people who fail forward as those who take responsibility, learn from each mistake and know failure is part of progress.” 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.  

Just Court ADR, the blog of Resolution Systems Institute published an interesting guest-post by Jennifer LaDuke about her experiences at a recent e-Discovery mediation training: As an attorney shifting her career toward mediation, I am always on the lookout for training opportunities to further my skill set and knowledge base. I have previous experience with litigation and electronically-stored information, including participating in a half-dozen large-scale cases where tens of thousands of electronic documents had to be reviewed, tagged, and logged. So, I was thrilled to link my interest in mediation and my previous experience by attending a recent two-day training program offered by the American College of e-Neutrals on the use of mediation to resolve electronic discovery, or e-Discovery, disputes. Continue reading here.

In Zaremski v. Am. Arbitration Ass’n, No. 11C5221 (N.D. Ill. May 9, 2012) Plaintiff Miles J. Zaremski worked as an arbitrator on a series of arbitrations pursuant to an agreement with Defendant American Arbitration Association (“AAA”). When the parties to the arbitrations failed to pay Zaremski’s monthly invoices, Zaremski refused to proceed with the arbitrations. AAA removed him as an arbitrator, and Zaremski sued AAA, seeking to recover the unpaid balance of his invoices as well as the fees he lost due to his allegedly wrongful removal. AAA filed a motion to dismiss pursuant to the Federal Rule of Civil Procedure 12(b)(6). Zaremski’s Complaint purports to state seven Counts: quasi-contract claims (Counts II, III, and IV); fraud claim (Count I); third-party beneficiary claim (Count V); fiduciary duty claim (Count VI); and improper removal (Count VII). The trial court: (i) denied AAA’s motion to dismiss as to the fiduciary duty claim and the improper removal claim; (ii) granted AAA’s motion to dismiss as to the fraud and the third-party beneficiary claims (both dismissed without prejudice); and (iii) dismissed the quasi-contract claims with prejudice. Stay tuned…

We came across an interesting article entitled “An Empirical Study of Predispute Mandatory Arbitration Clauses in Social Media Terms of Service Agreements,” by Michael L. Rustad, Richard Buckingham, Diane D’Angelo, and Katherine Durlacher, forthcoming at the University of Arkansas at Little Rock Law Review. Here is the abstract: With predispute mandatory arbitration clauses, a large and growing number of social networking sites (SNSs) are depriving users of their consumer rights. SNS users across the globe are required to agree to predispute mandatory arbitration as a condition of accessing content. Consumers that enter into clickwrap or browsewrap agreements waive their right to a jury trial, discovery, and appeal, likely without being aware that they are losing these important rights. The U.S. Supreme Court’s arbitration jurisprudence has made it difficult to challenge these troublesome contractual clauses and practices. The Roberts Court’s recent decisions, including AT & T Mobility, LLC v. Concepcion (2011) and CompuCredit Corp. v. Greenwood (2012), make it clear that the Court favors a broad enforcement of consumer arbitration agreements stripping the state of the ability to police these documents. These decisions are, in effect, a federal takeover of arbitration, preventing state efforts to protect consumers against one-sided and oppressive consumer arbitration clauses. This Article is the first empirical study of the use of predispute mandatory arbitration clauses by SNSs and sheds light on whether SNSs have used arbitration clauses strategically in order to achieve a “liability-free” zone in cyberspace. Our empirical findings reveal that SNS arbitration clauses contravene many of the principles deemed necessary for a fundamentally fair process for consumers to resolve disputes. Download the full article (free of charge) here.