by Holly Hayes The American Health Lawyers Association has issued an electronic guidebook for the implementation of a new Joint Commission (TJC) Medical Staff Standard, MS.01.01.01. The timeline for implementation of the new standard is March 31, 2011. Changes to a variety of hospital rules and bylaws will be necessary in order to comply with this new standard. Here is a description of the guidebook: Authored by one of the pre-eminent experts on medical staff issues, S. Allan Adelman, Esquire and his colleagues Timothy Adelman, Esquire and Ann O’Connell, Esquire, this new publication is designed to provide you with all the interpretations, analysis, and practical advice you need to meet the requirements of this new standard. The Guide distills much of the commentary and discussion about the Standard and provides samples of bylaw provisions addressing the requirements of MS.01.01.01. In particular, the Guide contains sample bylaw text addressing the requirements of the various Elements of Performance, including: • Amendment of Bylaws • Conflict Management • General Requirements, Criteria and Qualifications for Medical Staff Membership • Medical Staff categories • Selection, Election and Removal of Medical Staff Officers • Function, Size and Composition of Medical Executive Committee • Applications for Medical Staff Membership • Role of the Credentials Committee • Automatic Suspsension or Termination of Medical Staff membership • Summary Action • Grounds for Corrective Action The guidebook may be purchased here. See Disputing‘s previous posts about the new TJC Medical Staff Standard here, here and here. We welcome discussion on implementation of the new standard. 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.

In an interesting case currently on appeal to the Supreme Court of Texas, the Houston [1st] Court of Appeals vacated a trial court’s order appointing a three-person arbitration panel because the court was not the authority contemplated in the parties’ arbitration agreement. In In re Aramco Services Co., No. 01-09-00624-CV, (Tex. App. – Houston [1st], March 19, 2010), DynCorp International, LLC and Aramco entered into a contract for a computer system which was to be manufactured in the U.S. and installed at Aramco’s offices in Saudi Arabia. The contract contained a Saudi “Choice of Law” provision and an arbitration clause which stated: 2. Arbitration Any dispute, controversy or claim arising out of or relating to this Contract . . . which is not settled by agreement between the parties shall be finally settled in accord with the Arbitration Regulations, Council of Ministers Decision No. 164, dated 21 Jumada II 1403 (“the Regulations”) and the Rules For Implementation of the Arbitration Regulations effective as of 10 Shawal 1405 (“the Rules”) and any amendments to either then in force, by one or more arbitrators appointed in accordance with the Regulations, the Rules and this Contract. …. Article 10 If the parties have not appointed the arbitrators, or if either of them fails to appoint his arbitrator(s) . . . and there is no special agreement between the parties, the Authority originally competent to hear the dispute shall appoint the required arbitrators upon request of the party who is interested in expediting the arbitration, in the presence of the other party or in his absence after being summoned to a meeting to be held for this purpose. The Authority shall appoint as many arbitrators as are necessary to complete the total number of arbitrators agreed to by the parties; the decision taken in this respect shall be final. (Emphasis added.) The Rules for Implementation of the Arbitration Regulations (“the Rules”), also referenced repeatedly in the Contract, are written in Arabic, and they provide, in part: Article 3 The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari’a, commercial laws and the customs in force in the Kingdom. DynCorp filed suit in Houston seeking payment of certain monies pursuant to the contract. Aramco filed a motion to compel arbitration which the trial court granted. DynCorp then filed a motion to compel arbitration before JAMS or the American Arbitration Association. The trial court granted DynCorp’s motion in part and ordered the parties to submit to the court the name, address and qualifications of potential arbitrators and stated, Further, Plaintiff’s motion to compel, to the extent it asks this Court to determine any procedure for the conduct of the arbitration (language, venue, etc.), the motion is denied, as the Contract does not provide this Court with the authority to resolve the arbitration procedure disputes. Aramco filed a motion for clarification and reconsideration which was denied by the trial court. After both parties proposed potential arbitrators to the court, Aramco filed an objection because “the arbitrators proposed by DynCorp were unqualified to serve under the Regulations and Rules because they were neither Muslims nor Saudi nationals.” The trial court overruled Aramco’s objections and appointed a three party arbitration panel which consisted of two non-Muslims. Aramco filed a writ of mandamus to the Court of Appeals alleging “the trial court abused its discretion by (1) appointing arbitrators (2) who are not Muslims or Saudi nationals.” After briefly reviewing the law applicable to contract and arbitration agreement interpretation, the Houston Court stated: Here, “no party . . . interested in expediting the arbitration” requested that the trial court appoint arbitrators under Article 10 of the Regulations. Even if the request contemplated by Article 10 had been presented to the trial court, the trial court is not the “Authority” empowered to appoint arbitrators. For example, Article 8 of the Regulations provides that the “Secretariat” of the “Authority . . . shall be in charge of all the summons and notices,” and Article 12 of the Rules specifies that notice must be provided in Arabic. Article 9 of the Rules provides that the clerk of the “Authority” will act as “secretary of the arbitral proceedings,” which Article 25 specifies are to be conducted in Arabic. Unrebutted expert testimony accepted into evidence by the trial court suggested that the “Authority” had to be a court of Saudi Arabia. In the face of such evidence and the plain provisions of the Contract, the Rules, and the Regulations, the trial court erred when it concluded that it could act as the “Authority.” In light of our conclusion that the trial court could not be the “Authority” empowered to appoint arbitrators pursuant to the parties’ agreement, we do not reach the question concerning the empanelment of non-Muslim arbitrators. The Houston Court of Appeals held that the trial court lacked authority to appoint an arbitral panel to decide the parties’ dispute. Because of this, the Appeals Court did not decide whether the trial court abused its discretion when it appointed non-Muslim and non-Saudi nationals to the arbitration panel. The Houston Court conditionally granted Aramco’s writ of mandamus and directed the trial court to vacate its previous orders. The Houston Court’s holding is not completely surprising as arbitration agreements based on religious precepts or scripture have been upheld in Texas in the past. For example, the Beaumont Court of Appeals recently held in The Woodlands Christian Academy v. Weibust, 09-10-00010-CV, (Tex. App. – Beaumont, October 7, 2010), that an arbitration agreement in an employment contract was valid and enforceable despite that the agreement included biblical scripture aspects and the parties failed to seek biblically based meditation prior to submitting their dispute to arbitration. More about that case here. In 2005, the 5th Circuit upheld an arbitral award […]

The Fifth Circuit Court of Appeals has held that a motion to compel arbitration did not defeat a federal district court’s preliminary injunction. In Janvey v. Alguire, et al., No. 10-10617, (5th Cir. December 15, 2010), the U.S. Securities and Exchange Commission filed suit in U.S. district court against the Stanford Group and other related corporate entities (collectively Stanford) alleging that Stanford perpetrated a multi-billion-dollar Ponzi scheme. A receiver, Janvey, was appointed to marshal the estate. Janvey moved for a preliminary injunction to freeze the accounts of several former Stanford financial advisors and employees pending the outcome at trial. The employees filed a motion to compel arbitration based on promissory notes which contained a broad arbitration clause they entered into with Stanford. The employees argued that Janvey was bound by the arbitration clause because he stood in Stanford’s shoes while acting as receiver. The district court did not rule on the employees’ motion to compel arbitration and granted a preliminary injunction under the Texas Uniform Fraudulent Transfer Act (TUFTA). The employees filed an interlocutory appeal arguing “the district court should have granted their motion to compel arbitration, and that the district court had no power to grant the preliminary injunction when the motion to compel arbitration was pending.” First, the Fifth Circuit held the district court was within its power to issue a preliminary injunction where the issue of arbitrability was not yet decided. Next, the court analyzed the four elements necessary to issue an injunction and found the district court did not abuse its discretion when it granted the preliminary injunction. After that, the court held the injunction was not overly broad despite that it included Individual Retirement Accounts (IRA’s) and did not account for losses on personal investments. According to the court, it was up to the employees to prove they had a legal right to the funds in their IRA’s and, just as with any other creditor, employee losses on personal investments had to be sought through the receiver claims process. The Fifth Circuit next held that the district court acted within its power when it granted an injunction under the TUFTA because the “TUFTA expressly provides for an injunction and the district court exercised its discretion to grant that injunction.” After the employees’ noted a circuit-split existed regarding whether a district court may issue an injunction while arbitration is pending, the court declared “the circuit-split cases are not applicable,” because the district court did not rule on the employees’ motion to compel arbitration. Finally, the Circuit Court reviewed the employees’ motion to compel arbitration de novo. The court held that the arbitration provision at issue did not apply to Janvey because in his role as receiver he was acting on behalf of the creditors, not Stanford. In conclusion, the court stated: In this appeal concerning the Receiver’s attempt to marshal estate assets, we hold: (1) The district court acted within its power when it considered and decided the motion for preliminary injunction before deciding the outstanding motion to compel arbitration. (2) The district court did not abuse its discretion in issuing the preliminary injunction. (3) The preliminary injunction was not an attachment, nor was it overly broad. And (4) The Receiver’s claims are not subject to arbitration because he is suing on behalf of estate creditors. The Fifth Circuit Court of Appeals affirmed the U.S. district court’s ruling and remanded the case. Technorati Tags: arbitration, ADR, law

Nancy Welsh, Professor of Law at the Pennsylvania State University Dickinson School of Law recently authored “I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal’s Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution,” 114 Penn St. L. Rev. Vol. 114:4, No. 1149, 2010. In her article, Professor Welsh argues that recent U.S. Supreme Court decisions may be undermining any motivation for institutional defendants to negotiate or mediate with civil rights claimants. She suggests that courts in some cases consider conducting an expedited trial before an advisory jury “followed by negotiation or mediation between the parties and their lawyers” in order to maintain a robust public forum and defray costs. Here is the abstract: With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate – or even communicate with and listen to – such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized claimants – and our society – of alternative, effective avenues for the airing and resolution of disputes with powerful institutional players. Ironically, it was just this sort of deprivation that led the Supreme Court to announce its expansive vision of notice pleading in Conley v. Gibson. Conley foretells the need for our courts to maintain a robust public forum for those who are marginalized by the default procedures of normal life – not only to provide redress to the parties directly involved in particular disputes but because the viability of such a forum has the indirect and salutary effect of forcing institutional players to find a way to sufficiently approximate the fair dialogue and resolution modeled in our courts. In an attempt to acknowledge legitimate concerns regarding the inefficiency and costs of today’s civil litigation process in some cases, while still protecting the courts’ essential role in providing a forum for marginalized parties, this Article will suggest that courts take a second look at the summary jury trial, an expedited form of trial conducted before an advisory jury and followed by negotiation or mediation between the parties and their lawyers. Relatively early and appropriate use of this process could effectively prompt resolution and dialogue – i.e., private dialogue between the parties before the process is to occur; a stylized form of public dialogue during the trial phase of the process itself; and another private dialogue, potentially with assistance from a judge or mediator, after the advisory jury has been dismissed. The article may be downloaded here (without charge) from Social Science Research Network. What are your thoughts? Technorati Tags: ADR, law, mediation, arbitration