by Holly Hayes In his book, Beyond Neutrality, Bernard Mayer says, “Conflict resolution professionals are not significantly involved in the major conflicts of our times. Many conflict resolution practitioners play useful but essentially marginal roles in large-scale public conflicts… we are not involved at the center of the conflict or decision-making processes.” This week, we posted about “clinical integration” or the creation of Accountable Care Organizations (ACOs). Is this an area where conflict resolution practitioners can play a “useful and essential role at the center of the decision-making process”? American Medical News has this to say about the development of ACOs: The accountable care organization hit the mainstream when, in its June 2009 report, the Medicare Payment Advisory Commission discussed the concept as a way to reduce costs and improve care for Medicare beneficiaries, going so far as to discuss whether physician membership in ACOs should be mandatory. (The AMA countered that such projects be voluntary for physicians.) The health system reform law passed on March 23 directed CMS to begin demonstration projects to test ACO projects nationwide, the most prominent being the Medicare Shared Savings Program, scheduled to begin by Jan. 1, 2012. That allows physicians to sign up, voluntarily, for ACOs, which must consist of at least 5,000 Medicare patients, and must run for at least three years. …analysts say a sure thing is that the fee-for-service system, as constructed, is under attack, and that allying with fellow physicians and others in ACO might be a practical strategy to preserve, or even increase, income. And that’s why there is so much scrambling right now among doctors, and hospitals, to get involved with ACOs. Much of the nitty-gritty has yet to be worked out, but experts say physicians should start thinking about how their practices may need to change if they want to be ready for the final rules, and be able to take advantage of possible bonuses. “This doesn’t necessarily mean that physicians have to be employed, but they are going to have to work together,” Harold D. Miller, executive director of the Center for Healthcare Quality and Payment Reform in Pittsburgh, said July 12 at an American Medical Association seminar in Chicago. “We should not think that the only solution is large, integrated delivery systems. … You want to have multiple models and have some degree of competition.” Those who work in this area say the first step is for physicians to think about the kinds of issues in their practice that incur the most significant health care costs and the connections that have the most potential to reduce them. “We don’t really know how it’s going to work,” said AAFP President Lori Heim, MD. “Right now, it’s a theory.” The words: change, competition, attack, allying, scrambling, work together, multiple models and theory, suggest there may be a role at the table for conflict resolution practitioners as the government, hospitals, health systems, physician practices and health care associations seek to implement the Accountable Care Organization model which, at its core, holds care providers “accountable” for utilizing resources to decrease costs and increase quality. We welcome your thoughts on this topic. _________________________________________________________________________ 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 Twelfth District Court of Appeals of Texas has held that evidence of a routine employment practice was insufficient to prove an arbitration agreement existed. In In re Astro Air, L.P., No. 12-10-00108-CV (Tex. App. – Tyler September 15, 2010), Sharron Hall was hired by Astro Air, L.P. in December 2005 and remained an employee of Astro until she suffered an on the job injury in July 2007. Hall sued Astro, alleging that her injury was result of Astro’s negligence and Astro filed a motion to abate the proceeding and compel arbitration. Astro alleged that Hall’s claims were covered by an arbitration agreement which existed between Hall and Astro but the company was unable to produce a signed arbitration agreement. Astro presented an affidavit and deposition testimony from Astro’s human resources manager at the time Hall was hired, Lora Griffith Western. Western testified that Astro was a nonsubscriber to workers’ compensation at the time Hall was hired and that the “routine practice was to explain to any new employee that it was a nonsubscriber and that it had an ERISA complaint injury benefit plan that included an arbitration agreement.” Astro further required new employees to sign several documents, including an arbitration agreement, before the employee was permitted to begin work. These signed arbitration agreements, along with other documents, were routinely kept in each employee’s personnel file. In August 2007, Astro was acquired by Luvata Grenada, L.L.C. and all personnel files were sent to Luvata. Astro was unable to locate the personnel file belonging to Hall when she brought her claim. Despite this fact, Astro argued that Western’s testimony and affidavit as to routine employment practice was sufficient to establish that an arbitration agreement existed between Hall and Astro and to support Astro’s motion to compel arbitration. In response, Hall submitted an affidavit which stated that she did not recall being informed of an arbitration agreement, agreeing to be bound by an arbitration agreement as a condition of employment or signing any such agreement. She did, however, recall being informed that Astro was a nonsubscriber to workers’ compensation. After hearing argument and reviewing the affidavits, a trial court denied Astro’s motion to compel arbitration and Astro filed a petition for writ of mandamus. As an initial matter, the Twelfth District noted that because the arbitration agreement Astro was seeking to enforce was governed by the Federal Arbitration Act (FAA), a mandamus proceeding was appropriate because a denial of a motion to compel arbitration governed by the FAA leaves a party with no adequate remedy on appeal. The court then noted that because arbitration agreements “are valid, irrevocable, and enforceable to the same extent as any other contract” the court must “first determine whether the arbitration agreement in this case satisfies Texas law governing contract formation.” Only after an arbitration agreement found to exist does the strong presumption in favor of arbitration apply. “[T]he initial determination of whether an enforceable agreement exists is determined through the neutral application of contract law.” Under the Texas Rules of Evidence Section 406, evidence of an organization’s routine practice is relevant to prove the organization acted in accordance with that routine on a specific occasion. Establishing routine practice does not conclusively establish the fact, however, and the evidentiary burden belonged to Astro. In determining Astro’s evidentiary burden, the court noted that under established spoliation doctrine, the burden of prejudicial effects fall upon the party responsible for preserving the evidence. Despite that Astro presented strong evidence of routine practice, Western testified that she could not be certain that Hall had in fact signed an arbitration agreement and Hall likewise swore that she could not recall signing an agreement. Therefore, it was not possible for the court to “say that the trial court could reasonably have reached but one decision about the existence of an agreement to arbitrate.” The Twelfth District denied Astro’s writ of mandamus and held that the trial court did not abuse its discretion in when it denied Astro’s motion to compel arbitration. Technorati Tags: ADR, law, arbitration

The State of Connecticut has released statistics for its Foreclosure Mediation Program. The program allows borrower-occupants of a one, two, three or four family residential property located within the state to request mediation when facing judicial foreclosure. When a lender commences a foreclosure action, it must serve a notice to the homeowner along with a Foreclosure Mediation Certificate and an appearance request form. If a homeowner qualifies under the program and files an Appearance, the homeowner and lender then meet with a mediator employed by the State’s Judicial Branch in an effort to reach an agreement. Mediators used in the program must be “trained in all relevant aspects of the law, have knowledge of community-based resources and mortgage assistance programs and refer homeowners to these programs when appropriate.” Once an Appearance has been filed, no judgment of foreclosure may be entered until the mediation period has expired or otherwise terminated. Under the program, the mediation process is designed to address all issues of foreclosure including reinstatement of the mortgage, restructuring of the mortgage debt and foreclosure by decree of sale. Between July 1, 2009 and June 30, 2010, 26,510 foreclosure cases were filed in Connecticut and 21,174 cases were eligible for mediation under the program. Of those cases, a Foreclosure Mediation Certificate was filed in 47 percent, or 9,865, cases. An overview of the program may be found on the State of Connecticut Judicial Branch website. A copy of the Foreclosure Mediation Program statistics by county may be viewed here. Disputing has recently discussed similar programs which offer foreclosure mediation to borrower-occupants in both Hawaii and Florida. In Hawaii, 27 of the 31 home foreclosure cases that qualified for its Mortgage Foreclosure Pilot Program between November 2009 and June 30, 2010 requested mediation. In contrast, less than half of homeowners facing foreclosure in Miami-Dade County, Florida have complied with state-mandated mediation since January. Technorati Tags: ADR, law, mediation

The Fifth District of Texas has held that an order which compelled discovery and the testimony of the attorney for a party to a mediation settlement violated the confidentiality protections afforded by the Texas Civil Practice and Remedies Code. In In re Empire Pipeline Corp., No. 05-10-01044-CV, (Tex.-App.—Dallas Sept. 15, 2010), the relators, Empire Pipeline Corporation, Empire Exploration, L.P. and Empire Exploration Corporation, sought relief in a mandamus proceeding from a trial court order which granted the opposing party’s motion to compel discovery and to compel testimony relating to a mediation settlement between the party and the relators. H. Glenn Gunter sued the realtors in early 2006 alleging breach of an oil and gas exploration contract, “among other theories.” Both parties signed a settlement agreement during a December 2007 mediation. The relators’ attorney, Robert L. Harris, was present at the mediation. Shortly thereafter, Gunter moved to “’vacate’ the agreement” on the grounds that it was invalid and unenforceable due to duress and fraud, among other reasons. The relators responded to Gunter’s motion and requested a judgment which enforced the settlement agreement and dismissed Gunter’s claims. On March 25, 2008, after an evidentiary hearing, the trial judge issued an order enforcing the agreement and dismissing Gunter’s claims without prejudice. Gunter appealed and while the appeal was pending sought a declaratory judgment against the relators. Harris, the relator’s attorney, was served a Notice of Deposition duces tecum which stated that Harris’ deposition would be taken and requested Harris to produce: (1) all documents in the nature of notes and drafts from the mediation in this case held on or about December 12-13, 2007; (2) any form overriding royalty agreements or assignments to which he has access or which he utilizes or has utilized; and (3) all drafts or final version of overriding royalty agreements or assignments relating to Relators. On April 20, 2010 Gunter filed a motion to compel discovery which sought Harris’ deposition and the production of the requested documents. The relators counterclaimed asserting mediation, attorney-client and attorney work-product privileges, and argued the request was beyond the proper scope of discovery. Gunter filed an answer which asserted various affirmative defenses against the agreement, including withdrawal of consent, duress and coercion, mistake and fraudulent inducement. On July 9, 2010, the trial court signed an order following a hearing which granted in part and denied in part Gunter’s motion to compel. The order allowed for the deposition of Harris and the production of “any notes or drafts or documents given to the mediator or [Gunter . . . in connection the mediation or the preparation of documents relating to the alleged mediated settlement agreement.” The relators then sought relief in a mandamus proceeding before the Texas Fifth Court of Appeals, contending that the trial court abused its discretion in granting the order and that no adequate remedy could exist by appeal. In conditionally granting relators request for mandamus, the Fifth District noted that the confidentiality of mediation proceedings is protected by Texas Civil Practice and Remedies Code Section 154.073. Gunter contended that the confidentiality protection is not absolute and relied on Avary v. Bank of America (72 S.W.3d 779 (Tex.App.—Dallas 2002, pet. Denied)) and “two additional cases [which] Gunter asserts ‘underscore the continuing validity of Avary.’” In Avary, the Texas Fifth District Court of Appeals permitted discovery related to a court-ordered mediation settlement arising from a wrongful death claim. At the conclusion of the settlement, the guardian of the decedent’s estate sued the executor of the estate for breach of fiduciary duty, fraud, negligence and conspiracy. The executor moved for summary judgment, arguing that Section 154.073 rendered all communications during the mediation confidential. On appeal, the Court of Appeals reversed and remanded the lower court’s grant of the executor’s summary judgment. While making it clear that the holding was limited to the very specific facts before it, the Avary Court concluded that “only that where a claim is based upon a new and independent tort committed in the course of the mediation proceedings, and that tort encompasses a duty to disclose, section 154.073 does not bar discovery of the claim where the trial judge finds . . . disclosure is warranted.” As Gunter’s attempts to compel testimony and discovery were not “based on a ‘new and independent tort,’ the pursuit of which would not disturb the settlement reached at the mediation proceeding,” the narrow holding of Avary was not applicable. Likewise, the Court was not persuaded by Gunter’s argument that Cadle Co. v. Castle (913 S.W.2d 627 (Tex. App.—Dallas 1995, writ denied)) “renders the confidentiality provisions of chapter 154 of the civil practice and remedies code inapplicable on these facts.” The Court concluded that “all such discovery is barred by sections 154.073(a) and 154.073(b) of the civil practice and remedies code. . . [a]ccordingly, . . . the trial court abused its discretion by ordering the testimony and production of documents at issue.” The Court further concluded that the rights of the relators and Harris “would be materially affected by disclosure of the confidential information at issue” and that “Relators have shown that the trial court abused its discretion and that they have no adequate remedy by appeal.” The Court granted relator’s request for a writ of mandamus, unless the lower court vacates its July 9, 2010 order and denies Gunter’s “’Motion to Compel Discovery’ to the extent that motion pertains to such deposition and documents.” Technorati Tags: ADR, law, mediation