Mark your calendars! On October 21, 2011, the University of Missouri School of Law Center for the Study of Dispute Resolution will host its annual symposium in cooperation with the Chartered Institute of Arbitrators (CIArb) North American Branch, the University of Missouri International Center and the University of Missouri Transatlantic Center. The symposium, entitled Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration, will feature keynote speaker Gary Born as well as expert panelists from Canada, Austria, Switzerland and the United States. Confirmed speakers include: Keynote speaker: Gary Born – Wilmer Cutler Pickering Hale and Dorr LLP, London, United Kingdom Panelists: Professor Frédéric Bachand – McGill University, Montreal, Canada Professor Christopher R. Drahozal – University of Kansas School of Law Professor Alejandro Garro – Columbia University School of Law and Parker School of Foreign and Comparative Law Louise Reilly – Court of Arbitration for Sport, Lausanne, Switzerland Professor Marianne Roth – University of Salzburg, Austria Professor Peter B. Rutledge – University of Georgia The School of Law has put out a call for papers and proposals in connection with the conference. All papers from the 2011 symposium will be published in the Journal of Dispute Resolution. The call relates to two events that are being organized in connection with this year’s symposium: A works-in-progress conference for academics and scholarly-minded practitioners to be held on October 20, 2011, the day prior to the symposium itself (proposals due May 20, 2011); and A student writing competition with a $300 prize sponsored by the Chartered Institute of Arbitrators (CIArb) North American Branch (papers due August 15, 2011). Submissions and questions should be directed to Professor S.I. Strong at strongsi@missouri.edu. Registration will be available here. You may read Disputing‘s blog about last year’s symposium here. Technorati Tags: law, ADR, mediation, arbitration

The Supreme Court of Texas has held in a per curiam opinion that the Texas General Arbitration Act (TAA) applied to a dispute where a party invoked the TAA in a hearing on a motion to compel arbitration and no evidence was offered to show the TAA did not apply despite that the motion itself failed to invoke the act. In Ellis v. Schlimmer, No. 10-0243 (Tex., April 1, 2011), Ron and Tana Schlimmer purchased a home in Corpus Christi, TX from Veronica Ellis, a listing agent with Coldwell Banker Pacesetter Steel Realtors (“Pacesetter”), which acted as broker in the transaction. After their purchase, the Schlimmers discovered a number of defects with the home and sued both Ellis and Pacesetter for fraud, breach of contract, negligent misrepresentation and violations of the Texas Deceptive Trade Practices Act. After discovery began and five months before trial, Pacesetter’s lawyers discovered a mandatory arbitration clause in the real estate contract between Ellis and the Schlimmers. Pacesetter and Ellis filed a motion to abate and compel arbitration. The Schlimmers counter-claimed with waiver and estoppel arguments and alleged the arbitration clause did not cover the parties’ dispute. After the trial court denied Pacesetter and Ellis’ motion, they filed an interlocutory appeal with the Corpus Christi Court of Appeals. Although the Schlimmers did not contest the court’s jurisdiction to hear the matter, the Corpus Christi court raised the issue on its own. The Court of Appeals noted that Pacesetter and Ellis failed to invoke either the TAA or Federal Arbitration Act (FAA) in their motion to compel arbitration. The court then dismissed the parties’ appeal for lack of jurisdiction because the trial court failed to determine whether the TAA or FAA applied to the dispute and only the TAA authorized an interlocutory appeal. (Read the lower court’s opinion here.) According to the Supreme Court of Texas, although Pacesetter and Ellis failed to invoke the TAA in their motion to compel arbitration their counsel invoked the TAA by referring to the act at a hearing on the motion. Because of this, The burden was on the Schlimmers to show that some Texas state law or statutory requirement would prevent enforcement of the arbitration agreement under the TAA so that the FAA would preempt the Texas act. They did not raise any such defenses, nor did they question the agreement’s existence. . . . The court of appeals’ decision erroneously placed the burden to establish the absence of any defenses to arbitration on Ellis and Pacesetter. Under these circumstances, its decision is contrary to the strong policy favoring arbitration. The Texas Supreme Court reversed and remanded the case to the Corpus Christi Court of Appeals for consideration on the merits. Technorati Tags: arbitration, ADR, law, Texas Supreme Court

by Holly Hayes Last week, The New York Times reported the Obama administration has proposed long-awaited Affordable Care Act (the Act) regulations “encouraging doctors and hospitals to band together, coordinate care and cut costs,” through the formation of Accountable Care Organizations (ACOs). In return for this collaboration, the government is offering financial rewards to health care providers that meet detailed federal standards which slow the growth of health care spending. The proposed rules explain how doctors, hospitals, nursing homes and home health agencies can qualify for federal bonus payments by forming joint ventures known as ACOs. The Act: includes a number of provisions designed to improve the quality of Medicare services, support innovation and the establishment of new payment models in the program, better align Medicare payments with provider costs, strengthen program integrity within Medicare, and put Medicare on a firmer financial footing. With respect to quality improvement, the Affordable Care Act includes provisions to expand value-based purchasing, broaden quality reporting, improve the level of performance feedback available to suppliers, create incentives to enhance quality, improve beneficiary outcomes, and increase the value of care. The concept of value-based health care purchasing is described on the Agency for Healthcare Research and Quality (AHRQ) website as follows: buyers should hold providers of health care accountable for both cost and quality of care. Value-based purchasing brings together information on the quality of health care, including patient outcomes and health status, with data on the dollar outlays going towards health. It focuses on managing the use of the health care system to reduce inappropriate care and to identify and reward the best-performing providers. This strategy can be contrasted with more limited efforts to negotiate price discounts, which reduce costs but do little to ensure that quality of care is improved. The key elements of value-based purchasing include: Contracts spelling out the responsibilities of employers as purchasers with selected insurance, managed care, and hospital and physician groups as suppliers. Information to support the management of purchasing activities. Quality management to drive continuous improvements in the process of health care purchasing and in the delivery of health care services. Incentives to encourage and reward desired practices by providers and consumers. Education to help employees become better heath care consumers. We welcome any of your thoughts on the new regulations and on the concept of value-based purchasing. Technorati Tags: Healthcare, Mediation 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 Holly Hayes Karl Bayer and I taught a three-hour course at the American College of Healthcare Executives (ACHE) national meeting in Chicago last week. Our topic: Introducing Conflict Resolution Skills in Health Care. We summarized how conflict is viewed in the health care setting, reviewed a cost of conflict calculator, and used case studies from Getting to Yes by Roger Fisher and William Ury, The Power of a Positive No by William Ury, and Beyond Reason: Using Emotions as you Negotiate by Roger Fisher and Daniel Shapiro to teach conflict engagement skills. The reasons for working together in healthcare include: protecting/improving on-going relationships and improving patient safety, to meet regulatory standards, and for financial reasons — no margin, no mission. A study of nurses’ experiences with disruptive behavior published in the Journal of Nursing Care Quality summarized it well: “Disruptive behavior in healthcare has been identified as a threat to quality of care, nurse retention, and a culture of safety.” Read more here. The Joint Commission, National Patient Safety Foundation, American Medical Association (AMA) and ACHE have all made statements or developed standards or codes of conduct which support the concept that a collaborative relationship among care givers contributes to the provision of high quality patient care. As part of a series, in the next few weeks we will publish the real-life example used for our cost of conflict calculator and the healthcare case studies we used in our teaching. Technorati Tags: Healthcare, Mediation 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.