by Holly Hayes Richard J. Webb, LLC, writes the Healthcare Neutral ADR Blog. Over the last two months, he featured a four-part series on the value of a standing neutral in the healthcare setting. The four-part series of posts includes: introducing the concept, its advantages and relation to Joint Commission requirements, how to define the neutral’s role and Selecting A Hospital-Medicdl Staff Standing Neutral. The series focuses on two standards issued by The Joint Commission (TJC): 1.) Conflict Management Standard LD.01.03.01 which states, “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” Elements of Performance, or how The Joint Commission will score the standard, include: Development of a code of conduct that defines acceptable, disruptive, and inappropriate behaviors; and creation and implementation of a process for managing disruptive and inappropriate behaviors. 2.) MS.01.01.01 implemented in April 2011 is “designed to contribute to patient safety and quality of care through the support of a well-functioning, positive relationship between a hospital’s Medical Staff and Governing Body.” Element of Performance 10, states “The organized medical staff has a process which is implemented to manage conflict between the medical staff and the medical executive committee on issues including, but not limited to, proposals to adopt a rule, regulation, or policy or an amendment thereto.” Mr. Webb describes the advantages and drawbacks of the role of a Standing Neutral in healthcare: It is clear that the Joint Commission expects each hospital and its medical staff to have a dispute resolution mechanism in place. However, other than for the basic elements of the process (set forth in the Elements of Performance under LD.02.04.01), the Joint Commission leaves it up to each hospital and medical staff to fashion their own means of compliance. Most have simply adopted policies that mimic the Joint Commission’s directives, but are short on detail, essentially leaving conflict resolution to a case-by-case process. Unfortunately, this typically results in the parties falling into their familiar routine: “lawyering up” and setting the litigation machine into motion. Establishment of a hospital-medical staff standing neutral fundamentally alters this habit – and its advantages far outweigh its drawbacks. Advantages 1. Enables self-determination. The hospital and the medical staff remain in control of their relationship and the resolution of their differences, rather than abdicating to the legal system. 2. Saves time. The standing neutral can be activated at a moment’s notice. Once involved, the neutral’s use of alternative dispute resolution processes can bring about a resolution more quickly than traditional legal proceedings. 3. Less costly. The parties will spend less on lawyers and incur lower internal costs by resolving their disputes more quickly and efficiently. 4. Creates trust and confidence. Because the parties have jointly selected the standing neutral, and jointly defined the neutral’s role, they can be confident that the process used to resolve their dispute will be fair. 5. Preserves relationships. Rather than “slugging it out” through legal proceedings, parties using a standing neutral are encouraged to cooperate in a process that will yield a fair result. 6. Reduces the occurrence of disputes. Experience in the use of standing neutrals in the construction industry suggests that parties using this mechanism come to have fewer dispute as time goes on. This occurs because that each party realizes its position on any given issue will be quickly and candidly reviewed by a neutral who will hold both parties to the same standard of good faith and reasonableness. This forum does not favor hyperbole, stonewalling, bluffing and other tactics common to the traditional legal process. Accordingly, parties over time tend to self-regulate their demands and positions to more naturally coalesce around their common objectives. Drawbacks The establishment of a hospital-medical staff standing neutral is not without some perceived drawbacks. 1. Cost. The cost of the standing neutral must be considered. However, when compared to the internal costs and legal fees associated with resolving disputes through conventional means, this cost is minimal. 2. Loss of control. Some parties and their legal counsel may feel that the presence of a third party neutral will interfere with the party’s ability to “control” the handling of disputes that arise. But the neutral only has whatever authority the parties agree upon in advance. In reality, parties have far less “control” over the process and outcome of conventional litigation than they might think. 3. Fear of bias. If a party believes the standing neutral is biased towards the interests of the other party, the process is bound to fail. This is why both parties must participate actively in the selection of the standing neutral. It also means the neutral must work diligently to remain unbiased and appear to be unbiased throughout the engagement. 4. Confidentiality. Introduction of a standing neutral to the parties’ discussions opens up the possibility that confidences will be disclosed. The parties must believe that the selected neutral will honor the obligations of confidentiality imposed under the parties’ agreements and by law. Please see our interview with Mr. Webb for Disputing here . What do you think about a standing neutral in the healthcare setting? 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.

The Permanent Court of Arbitration (“PCA”) has adopted recently the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. The Optional Rules are based on the 2010 UNCITRAL Arbitration Rules. Download the Optional Rules here.

In Coneff v. AT&T, No. 09-35563 (9th Cir. March 16, 2012), Plaintiffs are current and former customers of defendants, New Cingular Wireless Services, Inc., and AT&T Mobility, LLC (“AT&T”). Plaintiffs filed a class action against AT&T, which responded by seeking to enforce an arbitration agreement contained in its contracts with Plaintiffs. The service agreement requires individualized arbitration of “all disputes and claims,” and it prohibits both class actions and class arbitrations. It also contained a choice-of-law clause that selected the law of the state in which an individual plaintiff ’s billing address is located. The district court refused to enforce the arbitration agreement on state-law unconscionability grounds, relying primarily on the agreement’s class-action waiver provision. AT&T now appeals. The Ninth Circuit reversed the district court’s substantive unconscionability ruling and remanded for further proceedings related to Plaintiffs’ procedural unconscionability claims.

The International Chamber of Commerce (ICC) invites individuals interested in serving as international arbitrators to join an intensive 2 1/2 training in Paris, on June 4-6, 2012. The course includes insight into the 2012 ICC Rules of Arbitration. Download the brochure here and find more information here.