by Holly Hayes The Association of periOperative Registered Nurses (AORN) published an article in their December journal titled, “Enhancing Communication in Surgery Through Team Training Interventions: A Systematic Literature Review.” The article quotes The Joint Commission’s (TJC) October 2007 Sentinel Events Statistics which stated communication failure was the root cause of approximately 70% of healthcare sentinel events. The TJC defined a sentinel event as an “unanticipated event in a healthcare setting resulting in death or serious physical or psychological injury to a patient.” The authors’ initial literature search identified 854 potential team training interventions; further screening reduced that number to 18 studies for review with 12 of those studies meeting the criteria for inclusion in the final sample. The results of the review, as described in the full text of the article, suggest overwhelming evidence that team training can improve team-based outcomes. The authors also conclude: The success of any team training intervention introduced into the clinical milieu lies in its sustainability over time. Clearly, the tendency for the effects of interventions to decay and for teams to regress over time also must be considered when defining the effectiveness of such interventions. Sustainability requires well-publicized institutional support and action at all levels in the organization and substantial commitment of institutional resources in the creation of team training policies and protocols, as well as regular retraining. We recommend that team training programs incorporate team coaches who are able to provide on-the-job support, similar to the TeamSTEPPS program. Equally important to this effort is the provision of timely and well-executed feedback on team- and patient-based outcomes. Team training is not a one-day or single-session event; therefore, teamwork behaviors need to be acknowledged and reinforced in mentoring sessions and annual performance evaluations. This will maintain behaviors over time and embed integration of teamwork into the organizational culture. In complex health care environments, teams do not exist in isolation and, as such, the effectiveness of any team training intervention cannot be appropriately evaluated without considering the larger system in which the team operates. As the healthcare industry continues to work to improve quality, decrease costs and respond to the Patient Protection and Affordable Care Act, the lessons gleaned from the literature review performed by Brigid M. Gillespie, RN, Cert Periop, BHlth Sc (Hons), PhD; Wendy Chaboyer, RN, BSc, MN, PhD; and Patrick Murray, M Mgt Av about OR team training may be applicable in other healthcare settings. We welcome your comments on this topic. Technorati Tags: 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.

On January 11th, the Supreme Court of Texas agreed to hear CMH Homes, Inc. et al. v. Perez, No. 10-0688. In the case, a dispute between a creditor and a purchaser of a mobile home arose. After both parties agreed their dispute was subject to arbitration under the Federal Arbitration Act, a trial court signed an order compelling arbitration and appointing an arbitrator over CMH Homes’ objections that such an appointment was premature. CMH Homes filed an interlocutory appeal to the arbitration order in the San Antonio Appeals Court pursuant to Section 51.016 of the Texas Civil Practice and Remedies Code. Section 51.016 is a recent addition to the Code and only became effective on September 1, 2009. It states: Sec. 51.016. APPEAL ARISING UNDER FEDERAL ARBITRATION ACT. In a matter subject to the Federal Arbitration Act (9 U.S.C. Section 1 et seq.), a person may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court, county court at law, or county court under the same circumstances that an appeal from a federal district court’s order or decision would be permitted by 9 U.S.C. Section 16. On July 28, 2010, the San Antonio Appeals Court dismissed CMH Homes’ interlocutory appeal for lack of jurisdiction (No. 04-10-00259-CV) and CMH Homes filed a petition for review with the Supreme Court of Texas. According to the Texas Supreme Court Journal, the questions presented by the parties are: ISSUES PRESENTED by CMH Homes, Inc., et al. 1. When federal courts permit interlocutory appeal of an issue, do Texas courts of appeals have the same jurisdiction under the new statute allowing interlocutory appeals “under the same circumstances that an appeal . . . would be permitted by 9 U.S.C. Section 16” of the Federal Arbitration Act? 2. When a party alternatively requests mandamus relief, and all procedural rules governing petitions for mandamus have been met, can a Texas court of appeals refuse to grant relief unless a second parallel proceeding is filed? ISSUES PRESENTED by Adam Perez Issue One A court of appeals does not have appellate jurisdiction under TEX. CIV. PRAC. & REM. CODE §51.016, which allows interlocutory appeal of arbitration orders to the extent permitted by 9 U.S.C. §16, because orders like the one at issue – appointing an arbitrator to resolve in impasse under §5 of the FAA – are not identified as one of the types of appeals permitted under the federal statute, and are therefore not immediately appealable unless combined with some other order from which an immediate appeal is permitted, such as a order of dismissal or orders denying arbitration. Issue Two CMH’s argument that a court of appeals should, for convenience, treat an appellate brief as though it were a mandamus petition, even though no instrument is filed to invoke the court of appeals’ original jurisdiction, was already rejected in Am. Std. v. Brownsville I.S.D. (In re D. Wilson Constr. Co.), 196 S.W.3d 774 (Tex. 2006). Oral argument will be heard at 9 am on February 3, 2011. Disputing will be keeping an eye on this and other notable ADR cases currently up for review by the Supreme Court of Texas. Technorati Tags: ADR, law, arbitration, Texas Supreme Court

Mark your calendars! The ABA Section of Dispute Resolution presents The Future of Mandatory Arbitration: A Conversation About Dodd-Frank and the Arbitration Fairness Act. The live teleconference will be held on Tuesday, February 8, 2011 from 12:00 – 1:15 pm EST. According to the brochure, Last year Congress passed Dodd-Frank, a bill that ushered in sweeping reform in the financial services industry. This bill directs the SEC to decide whether or not to eliminate mandatory arbitration. For several years, Congress has considered the Arbitration Fairness Act which could eliminate mandatory arbitration in all consumer disputes. The landscape is unclear and debate is heated. Join us while experts in this area discuss the future of mandatory arbitration in the securities industry and beyond. Joan Stearns Johnsen, Visiting Assistant Clinical Professor at Albany Law School will moderate. Speakers include: Kenneth Crowley, Executive Director of UBS Financial Services Inc., Weehawken, NJ. Theodore G. Eppenstein of Eppenstein and Eppenstein, PLLC, New York, NY. Stephen J. Ware, Professor of Law at the University of Kansas School of Law. The course brochure is available here. You may register until Friday, February 4, 2011 via mail, fax or online. Technorati Tags: ADR, law, arbitration

The Beaumont Court of Appeals has held in a memorandum opinion that a trial court properly compelled a party to arbitrate its claims against non-signatory third parties and properly entered judgment disposing of all claims where no evidence was offered against the third parties during arbitration. In Sabine Syngas, Ltd. v. Port of Port Arthur Navigation Dist., No. 09-09-00331-CV, (Tex. App. – Beaumont, January 13, 2011), the Port of Port Arthur Navigation District of Jefferson County, Texas (“Port”) entered into an agreement to develop and operate a gas and electric generation facility with Sabine Power in its capacity as a general partner of Sabine Syngas (collectively “Sabine”). The agreement contained an arbitration clause which provided, “[a]ny claim, dispute or other matter in question arising out of or related to the Agreement or otherwise arising from the design and construction of the Project shall be subject to arbitration.” In January 2006, the Port claimed the agreement was terminated and sued Sabine for breach. Also in 2006, the Port entered into a development agreement with the Goldman Sachs Group (“GSG”), Process Energy Solutions (“PES”) and James S. Falsetti for a gasification facility. Sabine filed a cross-claim against the Port for breach of the agreement and third party claims against GSG, PES and Falsetti for tortious interfere of the parties’ agreement. The Port, GSG, PES and Falsetti moved for arbitration based on the arbitration provision contained in the development agreement entered into between the Port and Sabine. Sabine argued the arbitration provision did not extend to its tortious interference claims. A trial court ordered all parties to arbitration and denied Sabine’s motion to sever its claims against GSG, PES and Falsetti. One day prior to arbitration, Sabine sought mandamus relief from the Beaumont Court of Appeals. The court denied Sabine’s request because “Sabine failed to establish that an appeal would not be an adequate remedy,” and the case went to arbitration. At arbitration, no evidence was offered with regard to Sabine’s third party claims. The arbitrator issued an award in favor of the Port, ordered Sabine to pay the Port contract damages and pay all arbitration costs and attorney’s fees. The arbitrator stated, “the award was ‘in full settlement of all claims submitted to this Arbitration’ and that ‘[a]ll claims not expressly granted herein are, hereby denied.’” The Port sought confirmation of the arbitration award and GSG, PES and Falsetti asked “the trial court to sign a take nothing judgment on Sabine’s third party claims.” Sabine opposed such a judgment by arguing that its third party claims were not arbitrated. The trial court rejected Sabine’s argument and confirmed the arbitration award. Sabine then appealed to the Ninth District of Texas Court of Appeals. Sabine argued that the trial court erred in compelling arbitration of its third party claims because they fell “outside the scope of its arbitration agreement with the Port.” The Court of Appeals stated although only signatories to an agreement are generally bound by the agreement, “'[a] person who has agreed to arbitrate disputes with one party may in some cases be required to arbitrate related disputes with others.’ Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 304 (Tex. 2006).” According to the Beaumont Court, Here, Sabine’s breach of contract claims against the Port are intertwined with its tortious interference claims against PES, Falsetti, and GSG and in fact have the same tap root—the Port’s proper termination of its agreement with Sabine. If the Port properly terminated its contract with Sabine, the Port’s subsequent execution of a development agreement with PES would not have been a breach of the Port’s contract and there could be no tortious interference with a terminated contract. Sabine’s tortious interference claims are dependent on the existence and terms of its Development Agreement with the Port. The Court of Appeals dismissed Sabine’s claims that GSG, PES and Falsetti were third party beneficiaries and as such had no right to compel arbitration, Appellees sought to compel arbitration in the trial court based on the theory of equitable estoppel, not as third party beneficiaries of the Development Agreement. Third party beneficiary theories, as well as equitable estoppel, are each independent bases non-signatory appellees can rely on to enforce the arbitration provision. See Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896, 1902, 173 L.Ed.2d 832 (2009). We conclude this third party beneficiary disclaimer does not negate appellees right to compel arbitration based on equitable estoppel. Sabine also argued the trial court erred when it confirmed the arbitrator’s award “because it disposed of Sabine’s tort claims without any arbitration finding or conclusion and without evidence to support the take nothing final judgment.” According to the court, We hold that Sabine had the burden to initiate arbitration as to its third party claims against PES, Falsetti and GSG. Since Sabine failed to initiate arbitration after the trial court ordered the arbitration to proceed, the trial court properly entered judgment disposing of all claims. Finally, the Court of Appeals dismissed Sabine’s argument “that the trial court erred in signing the final judgment because the arbitrator did not have jurisdiction to decide its third party claims when a three-person arbitration panel was required in arbitrations involving monetary claims in excess of $250,000 and there was only one arbitrator in this case.” According to the court, the number of arbitrators was a procedural contract issue the parties were free to waive and no evidence was offered regarding whether waiver had occurred. The Beaumont Court of Appeals held the trial court did not abuse its discretion when it compelled Sabine to arbitrate its claims against third parties GSG, PES and Falsetti. The Appeals Court also held “the trial court properly entered judgment disposing of all claims.” The Beaumont Court affirmed the judgment of the trial court. Technorati Tags: arbitration, ADR, law