by Peter S. Vogel Michael Geigerman was the Moderator for a half seminar at the Washington University School of Law regarding complexities created by eDiscovery and Social Media on October 29, 2010. Mr. Geigerman is a full-time Mediator in St. Louis, the Managing Director of United States Arbitration & Mediation Midwest, Inc. (USA&M Midwest Inc.), and is an Adjunct Professor at the Washington University School of Law where he runs the ABA Negotiation and Mediation Competitions. USA&M Midwest Inc. and the Washington University Law Dispute Resolution Program regularly present the Missouri Best Practices Seminars, and the proceeds from the Seminars are all donated to charities. eDiscovery: Ethical Considerations, ADR and Social Media I was honored to speak at this Seminar and my speech included a discussion regarding how Social Media is creating an ocean of electronic evidence which impacts all litigation. As a consequence, Mediators and Arbitrators must be aware of eDiscovery in every case, and also be alert to how Social Media affects the litigants. Obviously Social Media communications impacts ethical considerations for lawyers and neutrals alike, and being thoughtful about what we say in emails and post on Facebook or LinkedIn is essential in today’s environment. Also I included a discussion about the use of Mediation Conferences directed at managing eDiscovery called eMediation for which I credit my good friend Allison Skinner, who is a full time neutral and continues to teach eDiscovery at the University of Alabama School of Law as an Adjunct Professor. Finally, I discussed my experiences as a Special Master in eDiscovery disputes for more than 20 years. eDiscovery Panel Discussion Following my remarks about Social Media and eDiscovery I was the Moderator of a distinguished panel including US District Judge E. Richard Webber, Eric Holland, and Kevin Fritz who responded to the audience and discussed ADR issues concerning eDiscovery, Social Media, and Special Masters. Since this Seminar was a sell-out with standing room only, you can image there was a lively and candid discussion about Rule 26(f) conferences, eDiscovery, ADR, and specific active cases in metropolitan St. Louis. Mandatory Mediation Conferences in Missouri In 2009 Mr. Geigerman was appointed by the Missouri Supreme Court to the Commission on ADR and the Seminar included a panel discussion about revisions to ADR Rule 17 which would make Mediation Conferences mandatory in Missouri. Mr. Geigerman led a discussion by a panel of ADR Commission members including Professor Karen Tokarz (Washington University School of Law), Richard Sher, and Maurice Graham. Generally the Commission members and the audience were very enthused by the prospect of making Mediation Conference mandatory for disputes over $25,000. Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com. Technorati Tags: special masters, ADR, law, arbitration, Mediation

by Holly Hayes On November 17, 2010, the Centers for Medicare & Medicaid Services (CMS) established the CMS Innovation Center. The Center will “examine new ways of delivering health care and paying health care providers that can save money for Medicare and Medicaid while improving the quality of care.” The Innovation Center will consult stakeholders across the health care sector including hospitals, doctors, consumers, payers, states, employers, advocates, relevant federal agencies and others to obtain direct input on its operations and to build partnerships with those that (are) interested in its work. The organization will also test models that include establishing an “open innovation community” that serves as an information clearinghouse of best practices in health care innovation. The Center will also work with stakeholders to create learning communities that help other providers rapidly implement these new care models. “For too long, health care in the United States has been fragmented-failing to meet patients’ basic needs, and leaving both patients and providers frustrated. Payment systems often fail to reward providers for coordinating care and keeping their patients healthy reinforcing this fragmentation,” said Donald Berwick, M.D., CMS Administrator. “The Innovation Center will help change this trend by identifying, supporting, and evaluating models of care that both improve the quality of care patients receive and lower costs.” The new website will be updated in the coming months. You may subscribe at the site to receive the RSS news feed or updates by email. 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. Technorati Tags: Mediation

The Dallas Court of Appeals has overturned a district court’s refusal to compel arbitration in two related attorney-client dispute cases. In BDO Seidman, LLP v. J.A. Green Development Corp., 05-09-01520-CV (Tex. App. – Dallas, Nov. 9, 2010) and Sidley Austin Brown & Wood, LLP v. J.A. Green Development Corp., 05-10-0008-CV (Tex. App. – Dallas Nov. 9, 2010), real estate development company Green sought tax advice from BDO Seidman and Sidley Austin predecessor Brown & Wood which included utilizing a distressed debt tax strategy. Green entered into a tax consulting agreement with BDO Seidman which contained an arbitration clause. Green also engaged Brown & Wood to draft a tax consequences opinion. The agreement between Green and Brown & Wood contained an arbitration provision as well. After Green implemented the tax strategies and recommendations of both BDO Seidman and Brown & Wood, the Internal Revenue Service (IRS) informed the company that the distressed debt strategy employed was an illegal tax shelter and its deductions would not be allowed. The IRS also assessed substantial penalties, fines and interest against Green. Green filed suit against BDO Seidman and Brown & Wood’s successor, Sidley Austin, alleging various claims, including fraud and malpractice. After separate hearings, both BDO Seidman’s and Sidley Austin’s motions to compel arbitration were denied. In BDO Seidman, the Dallas Court of Appeals considered three issues: whether the Federal Arbitration Act or New York law controlled, whether Green’s claims fell under the arbitration agreement, and whether the arbitration agreement was unenforceable due to unconscionability. The Dallas Court relied on several New York cases to reach a conclusion that the agreement did not contain the necessary “enforcement language” to trigger enforcement under New York law. The court then held that the arbitration agreement was broad and clearly encompassed the claims brought by Green. Finally, the court held that Green’s claims were properly left to an arbitrator because they did not allege fraud in the creation of the arbitration agreement but rather were allegations of bad acts in the formation of the parties’ consulting agreement. In Sidley Austin, the court considered three unconscionability arguments set forth by Green. Green’s first two arguments were based on theories of fraud and duress with regard to the engagement agreement. The court noted that the misrepresentations alleged by Green went to the entirety of the agreement and arbitration provisions are generally severable and enforceable aside from other provisions of a contract. Green also argued that Sidley Austin “did not explain the advantages and disadvantages of arbitration to Green before entering into the agreement.” Green failed to make other arguments against the validity of the arbitration agreement, however, and the court found that the terms were neither so unusual nor so one-sided as to be facially unconscionable. The court then held that it was an abuse of the trial court’s discretion to deny Sidely Austin’s motion to compel arbitration. In both cases, the Dallas court reversed and remanded the lower court’s order with instructions for the trial court to compel arbitration. Earlier this year, Disputing blogged here about a case in which the Houston Court of Appeals [14th] enforced an attorney-client arbitration agreement. Technorati Tags: ADR, law, arbitration

S.I Strong, Associate Professor of Law at the University of Missouri and contributor to this blog, recently wrote an interesting article entitled From Class to Collective: The De-Americanization of Class Arbitration, Arbitration International, Vol. 26, No. 4, 2010. In the article, Professor Strong considers in detail what new forms of group arbitration will likely arise in the future. Here is the Abstract: Opponents to international class arbitration (also known as ‘class action arbitration’ or ‘classwide arbitration’) frequently characterize the procedure as a ‘ “uniquely American” device’ and take the view that the procedure never could or never should expand beyond the United States. However, a growing number of commentators believe that large-scale group arbitration can or will spread beyond US borders, although that does not necessarily mean that the procedures adopted will or should be the same as those used in US-style class arbitrations. This article considers what these new forms of group arbitration – described herein as ‘collective arbitration’ to mirror terminology used to describe collective redress in national courts – will look like in terms of procedure. The discussion also includes analysis of certain potential problem areas, using analogies to the American Arbitration Association (AAA) Supplementary Rules for Class Arbitration as a guide, and addresses the likely enforceability of awards arising out of such actions under the New York Convention. The article will appear in the December issue of Arbitration International. A draft version is currently available here (without charge) from Social Science Research Network. Other papers by Professor Strong can be found here. Technorati Tags: ADR, law, arbitration