by Holly Hayes U.S. Politics Today reported that in Connecticut, “as of July 1, the presiding judge over a medical malpractice case must refer the case to a 120-day mediation period or other alternative dispute resolution (ADR) process ‘before the close of proceedings.’” The stated purpose of the new statute which mandates mediation in medical malpractice cases is to achieve a “prompt settlement or resolution of the civil action.” The hope is that cases with very clear liability issues or those that are not meritorious to begin with can be settled before incurring the expenses of a trial. While there are some critics of the new law, it appears there is consensus that it will not resolve “big-ticket” malpractice cases. The new law may help avoid protracted litigation during the resolution of smaller cases, however. In August, we reported on an American Medical Association (AMA) survey of 5,825 physicians about medical liability lawsuits that said: The majority of lawsuits never made it to the courtroom, according to 2008 data from the Physician Insurers Assn. of America (PIAA), a trade group representing liability insurance companies owned or operated by physicians, hospitals and other health care professionals. Sixty-five percent were dropped, dismissed or withdrawn. About one in four claims was settled, and 4.5% were decided by alternative dispute mechanism. Of the 5% that went to trial, defendants won in 90% of cases, the PIAA said. But fighting a claim is costly. Defense against a claim averaged $22,163 for suits dropped, dismissed or withdrawn, and more than $100,000 for cases that went to trial, according to PIAA data. Let us hear from you about mandating mediation in medical liability cases. 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

Next month, the Financial Industry Regulatory Authority (FINRA) will file a rule proposal to expand a two-year-old Public Arbitrator Pilot Program (pilot program) which would allow all investors filing arbitration claims the option of having an all-public arbitration panel. FINRA’s rule proposal will be filed for approval with the Securities and Exchange Commission. If approved, the rule would allow investors to choose an arbitration panel with two public arbitrators and one non-public arbitrator or an all-public panel. Currently, the pilot program allows investors filing an arbitration claim against 14 firms that volunteered for the program the option of choosing an all-public panel. The current pilot program is also limited to cases that do not involve individual brokers. The proposed rule would expand the pilot program to include all investor disputes against any firm and any individual broker, although the proposed rule would not apply to disputes involving only industry parties. More than 60 percent (approximately 560 cases) of eligible investors chose to opt in since the pilot program began in October 2008. Of those investors, approximately 50 percent chose to include one non-public arbitrator on their panel. The pilot program was originally slated to conclude in October 2010, however, participating firms recently agreed to extend the pilot program for one-year in order to allow time for the rule making process to be completed. You can read an interesting article about the rule proposal here. The FINRA news release may be read here.? Disputing blogged on FINRA’s Public Arbitrator Pilot Program previously here. Technorati Tags: law, ADR, arbitration, FINRA, securities arbitration,

by Don Philbin Earlier this month, I was pleased to be the invited luncheon speaker for the Advanced Texas Administrative Law Seminar in Austin. Of course, I knew that my job was to discuss advanced decision analysis and the analytical and graphical illustration tools that I’ve been working on to help communicate such case analyses. What I didn’t know was that I would be followed by an excellent presentation that would drill into appellate statistics and disposition times in the administrative law realm. Steven Baron, in a presentation titled “Winning: Some Reflections and Empirical Observations about Challenging Agency Action,” suggested that parties weighing an appellate challenge to an adverse administrative agency decision consider three questions: What are my chances of success? How long will it take to get a decision? How much will it cost? To guide people wrestling with those questions, Baron surveyed approximately 230 Texas appellate decisions over the three-year period from August 2007 through July 2010. His first cut revealed that the courts of appeals reversed the agency on one or more of the principle issues in 81 of the 230 cases, or 34.5% of the total. Baron then teased out the specific issues on which parties were successful. By a two to one margin, misinterpretation of the relevant statute or agency rule came in first. Those claims appeared in one third of the challenges and they were successful 29% of the time. Closely related claims that the agency exceeded its authority (acted ultra vires) occurred in 13% of cases and succeeded 26.6% of the time. Baron noted that combined, statutory/rule misinterpretation and ultra vires claims appeared 41% of the time and had a success rate of 24%. He continued that analysis for other claims that were raised less often. Baron then factored the numbers to show an overall likelihood of reversal by claim type. While statutory/rule misconstruction won by more than 2 to 1, the overall likelihood of reversal was still just under 10%. With those long odds of appellate success, Baron turned to the question of time to obtain that result. Baron reviewed a number of statistics on appellate dispositions in administrative appeals. The average disposition time, not including any subsequent remand, was 3.45 years. He also noted that these disposition times varied by court. The Third Court of Appeals in Austin hears half (48%) of administrative appeals and takes 25% longer on average than other appellate courts to dispose of such cases. Baron recalled that the Texas Supreme Court observed in O’Neal v. Ector County Independent School District, 251 S.W.3d 50 (2008), that appeals and remands may extend procedures for years in administrative law cases. Finally, Baron turned to the question of costs. He knew that costs are a function of the usual factors in lawsuits, with the added complication that administrative law cases are essentially tried twice since the standard of review in the district court is de novo. Baron reached the fairly obvious conclusion that even a sub-10% chance of reversal may make a lot of sense in cases where the stakes in that particular case or in forward-looking matters that would be impacted by the precedent would vastly exceed the cost of the challenge, even when factored by the less than 10% chance of success two or three years down the road. Baron did a fine job of pulling the quantitative statistics together in the administrative law context. This is a continuing area of interest to me. It won’t be long before my own program automating many of these and other analytics is available. Technorati Tags: law, ADR, arbitration Don Philbin is an AV-rated attorney-mediator, negotiation consultant and trainer and arbitrator. He has resolved disputes and crafted deals for more than 20 years as a commercial litigator, general counsel and president of communications and technology-related companies. Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels, including CPR’s Panels of Distinguished Neutrals. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation Committee and a member of the ADR Section Council of the State Bar of Texas. Don is a Fellow of the American Academy of Civil Trial Mediators and is listed in The Best Lawyers in America (Dispute Resolution), Texas Super Lawyers (2010), The Best Lawyers in San Antonio and the Bar Register of Preeminent Lawyers.  

A recent article in the Yale Journal of Law and Feminism entitled “Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases,” 22 Yale Journal of Law and Feminism 97 (2010), makes an interesting argument that many states need to reexamine policies banning or restricting mediation in divorce proceedings involving domestic violence. According to Mary Adkins, co-student director of the Yale Domestic Violence Clinic, as the number of divorce cases rapidly increased during the late 1980’s and early 1990’s (70% between 1984 and 1996), courts began to more widely experiment with a number of alternative dispute resolution (ADR) models in divorce proceedings. A large number of judges, scholars and domestic violence advocates expressed concern about the appropriateness of using mediation in cases where domestic violence occurred, however. The National Council of Juvenile Family Court Judges was influenced by these critiques in drafting Sections 407 and 408 of the 1994 Model Code on Domestic and Family Violence which, in turn, influenced many states to limit or completely ban divorce mediation in circumstances of domestic violence. The author points to the American Bar Association Commission on Domestic Violence’s 2008 publication “Mediation in Family Law Matters Where DV is Present” to illustrate the extent to which mediation has been restricted nationwide. The author asserts that critics of the use of ADR in such cases were focused on the so-called facilitative model of mediation, which stresses features such as brainstorming and validating both parties’ points of view, rather than the evaluative model, which focuses more on efficiency and legally-influenced outcomes such as settlement agreements. The author states this distinction is important because the evaluative model is the dominant model actually used in divorce mediations and the model can easily be tailored to offer enhanced protections for victims of domestic violence. The author argues, as a matter of public policy, the premises underlying the position taken by the National Council of Juvenile Family Court Judges and many states should be reevaluated so the victims of domestic violence are not unfairly prohibited from taking advantage of mediation settlements which may be preferable to litigation in many circumstances. Section 6.602(d) of the Texas Family Code Annotated currently allows a victim of domestic violence to object to mediation proceedings in a suit for dissolution of marriage, but does not forbid mediation outright. Additionally, this section of the Family Code also incorporates certain protections recommended by the article’s author, such as allowing for remote mediation. Texas Family Code Annotated Section 153.0071 extends similar protections to mediation proceedings related to custody disputes, but also allows the court to decline to enter a judgment pursuant to a mediation settlement if a party to the agreement was a victim of domestic violence where the terms the of the settlement agreement are not in the best interests of the child. Disputing recently discussed a case decided earlier this month by the Houston First Court of Appeals which allowed for cooperative law agreements in divorce proceedings here. Technorati Tags: ADR, law, mediation