The First Court of Appeals of Texas held in a case of first impression that a cooperative law agreement in a divorce proceeding does not violate public policy. In In re Mary Lynn Mabray, No. 01-09-01099-CV (Tex. App.-Hous. (1 Dist.) August 31, 2010) the relator, Mary Lynn Mabray, challenged a trial court’s order denying her motion to disqualify counsel from representing her husband, Gary Allen Mabray, and her motion to revoke consent to arbitration. In October 2008, the relator sought a divorce from her husband after 35 years of marriage. In February 2009, the parties signed a four page document titled “Cooperative Law Dispute Resolution Agreement” (Agreement). The Agreement forbade formal discovery unless agreed upon by the parties, relied on “good faith” informal discovery and provided that the cooperative law process would cease and the parties would submit the divorce to arbitration if the divorce was not settled by April 30, 2009. Additionally, the Agreement specifically cited to the arbitration and informal settlement conference provisions of the Texas Family Code. (TEX. FAM.CODE ANN. §§ 6.601, 604.) The parties filed a “Joint Motion for Referral to Arbitration” on March 11, 2009 asking the court to submit their case to arbitration if they failed to resolve their case by agreement on or before April 30, 2009. The Motion also asked the court to appoint a person agreed to by the parties as the arbitrator. The trial court signed the requested order on March 18, 2009. Because a final decree of divorce was not submitted to the court by April 30, 2009, the cooperative law process ceased by its own terms. Nowadays, many people use an app to grab cheating evidence from their partner. If you want to know more, this article about which is better find out mspy vs spybubble for the truth can help you with that. The relator asserted to the trial court that the Agreement sought to “contract around” Texas’s collaborative law statute, section 6.603 of the Texas Family Code in an effort to allow her husband’s attorney to continue to represent him in litigation once the collaborative process had failed. Her husband sought to compel arbitration and argued that the Texas collaborative law statue is inapplicable to cooperative law agreements. On October 30, 2009, the trial court signed an order compelling arbitration. The relator sought a writ of mandamus from the Court of Appeals directing the trial court to overturn its order compelling arbitration on public policy grounds and its order denying her motion to disqualify her husband’s attorney. The Court of Appeals first addressed the differences which exist between cooperative and collaborative law: Akin to collaborative law, cooperative law “is a process which incorporates many of the hallmarks of Collaborative Law but does not require the lawyer to enter into a contract with the opposing party providing for the lawyer’s disqualification.” Smith and Martinez, 14 HARV. NEGOT. L.REV.. at 166. “Cooperative law includes a written agreement to make full, voluntary disclosure of all financial information, avoid formal discovery procedures, utilize joint rather than unilateral appraisals, and use interest-based negotiation.” Lande and Herman, 42 FAM. CT. REV. at 284. Put simply, cooperative law agreements mirror collaborative law agreements in spirit and objective, but lack the disqualification clause unique to collaborative law agreements. The court noted that Texas was the first state in the nation to codify collaborative law. According to the court, “cooperative law is a small but legitimate movement akin to collaborative law,” and although no state has yet codified cooperative law it is not prohibited in any jurisdiction. The Court of Appeals first addressed whether the collaborative law statute controlled the parties’ agreement and, if not, whether a cooperative law agreement is void within the State of Texas as a matter of public policy. The trial court determined that the parties’ Agreement was a cooperative law agreement which need not conform to Texas’s collaborative law statute. According to the Court of Appeals, the plain language of the collaborative law statute stating “a dissolution of marriage proceeding may be conducted under collaborative law procedures,” makes it elective, not mandatory. Instead, parties electing to follow collaborative law statutory procedures obtain certain benefits from the trial court. In order to obtain these benefits, the parties must enter into an agreement providing for (1) a full and candid exchange of information; (2) suspending court intervention in the dispute while the parties are using collaborative law procedures; (3) hiring any experts jointly; (4) withdrawal of all counsel in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and (5) other provisions agreed to by the parties that are consistent with a good faith effort to collaboratively settle the suit. According to the court, the Agreement signed by the parties did not require the withdrawal of counsel if a settlement was not reached; therefore the collaborative law procedures were not applicable. The Court of Appeals stated that although the collaborative law statute is one of four alternative dispute resolution processes the Texas legislature specifically encourages parties in divorce proceedings to utilize, they are not the exclusive forms of alternative dispute resolution available in a divorce. There is no statute or case law in Texas that explicitly prohibits any specific form of alternative dispute resolution. Additionally, nothing in the statute or in its legislative history leads us to the conclusion that the collaborative law statute forbids parties in Texas from entering into cooperative law agreements. It has been the stated policy of Texas from at least 1987 “to encourage the peaceable resolution of disputes … and the early settlement of pending litigation through voluntary settlement procedures.” TEX. CIV. PRAC. & REM.CODE ANN. § 154 .002 (Vernon 2005). There is no statute or case law in Texas that explicitly prohibits any specific form of alternative dispute resolution. Because Section 6.604(a) of the Family Code is silent as to the procedures that can be used in informal settlement conferences, the court concluded that “the legislature meant to […]

In January, the Florida Supreme Court ordered mediation on all home foreclosure cases. According to Miami Today, less than half of homeowners in Miami-Dade County have complied with state-mandated mediation since January. Miami-Dade County is one of three Florida counties that ran a managed mediation pilot program prior to the state-mandated mediation order. The Mortgage Foreclosure Mediation Program administered by the non-profit Collins Center for Public Policy (Collins Center) has contracted with Miami-Dade County to provide mediation services to homeowners in the county facing foreclosure. Although lenders are charged a fee, the one to two hour program is free to homeowners. In Miami-Dade County, the Collins Center sends three written notices to a homeowner and makes four phone calls regarding their option to engage in mediation once a foreclosure is filed with the courts. If a homeowner does not respond within 30 days after mediation services are offered, the Collins Center notifies the court handling the foreclosure. Only then will the court move forward with the case. Borrowers are also provided one last chance to agree to mediation if they appear in court. Approximately 5,700 mediation meetings were completed in Miami-Dade County since the program started in May 2009 and an additional 1,100 are currently scheduled. Although less than half of homeowners in the county have complied with state-mandated mediation since January, only 24,064 foreclosure actions were filed this year against homeowners in Miami-Dade County. That number is less than half the 64,001 foreclosure cases filed in 2009. The Collins Center believes the number of homeowners pursuing the mediation option is low because it is difficult for homeowners to distinguish between legitimate and predatory foreclosure assistance programs. Since the mediation program took effect in all of Florida, the Collins Center has held more than 8,000 mediations statewide. You can read the entire article here. Last week, “Disputing” discussed the mid-year statistics for the Third Circuit Court of Hawaii’s Foreclosure Mediation Pilot Project here. In contrast to the Florida program, 27 of the 31 home foreclosure cases that qualified under the Hawaii program between November 2009 and June 30, 2010 requested mediation. Technorati Tags: ADR, law, mediation

by Holly Hayes Our good friend, Don Philbin, sent us this link to a Harvard Business School article about “Turning Employees Into Problem Solvers” in healthcare. The article looks specifically at incident-reporting systems in hospitals and, rightly so, suggests that any system used to report and track incidents in healthcare should contribute to the implementation of actions to correct for those incidents resulting in higher quality care. The paper is authored by Julia Adler-Milstein, an HBS doctoral candidate in the Health Policy Management program; Sara J. Singer, assistant professor at the Harvard School of Public Health and Harvard Medical School; and HBS professor Michael W. Toffel. The team’s working paper, “Speaking Up Constructively: Managerial Practices that Elicit Solutions from Front-Line Employees,” considers data on nearly 7,500 incidents from a single hospital to determine whether two types of managerial actions increase the frequency with which frontline workers speak up by reporting incidents and do so constructively by including solutions in their incident reports. The authors looked at “patient-safety information campaigns.” Undertaking a campaign to encourage staff members to speak up about incidents increased the frequency of reporting by five percent. When staff were asked to share a solution to the problem the frequency of shared solutions tripled. In addition, there was a significant increase in reporting when unit managers actively engaged in problem solving. Staff were more likely to share solutions when their managers were more proactive in resolving the underlying problem. Another finding: the campaign worked great for a limited time period, after which staff appeared to “shut down” and the frequency in responses slowed. The authors ask, “At what point do people shut off?” The team’s database offers additional information to consider that was not examined in the working paper, Toffel says. Other questions to answer include: What types of responses to incidents are most effective? When should behavioral corrections be implemented? When should technological corrections be made? “I’m excited to look at this data longitudinally,” says Singer. “Ideally, one would hope that an incident gets reported and that a solution is implemented so that the incident doesn’t recur. We can look at whether this happens over time. Knowing this will make a significant contribution to improving patient safety, because a lot of hospitals rely on these reporting systems and promote their use, if only to fulfill accreditation requirements. “The real question remains, are they serving the intended purpose? It could be that very little happens with these reports in terms of the long-term learning that you would hope to see.” Says Adler-Milstein, “We could also determine if the same type of incident is occurring in a given unit over time, even when it is being reported. That would then make it possible to focus on how particular units resolve their problems.” Identifying pockets of excellence would enable more qualitative research to determine what exactly a unit is doing to achieve its success—and to identify how those practices could be codified and adopted elsewhere. “Health care started out with largely independent practitioners and a limited body of knowledge,” says Adler-Milstein. “Given the changes that have occurred recently, technological and otherwise, health care hasn’t caught up quickly enough with the new practice methods that accompany this very different, modern-day model. I hope we will get there eventually, but right now there is a lag.” Drilling down to discover when frontline employees speak up most constructively, and how to translate this into problem solving, should help bridge that gap. In terms of staff speaking up constructively and helping problem solve, we posted here about a Mass General study that indicated physicians are reluctant to report impaired or incompetent colleagues. We suggest that organizations that develop the capacity of staff and physicians to engage in healthy conflict in the workplace may move closer to achieving improved patient care. We welcome your comments 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. Tags: Mediation

The Fifth Circuit has held that the question of arbitrability is for an arbitrator to decide where an arbitration agreement exists between the parties and they clearly intended for the issue to be arbitrated based on the wording of the arbitration provision. In Allen v. Regions Bank, No. 09-60705, (5th Cir., August 11, 2010), plaintiffs (the Allens) obtained a home equity loan from First American National Bank in October 1999. The bank withheld funds from the loan proceeds in order to purchase credit life and disability insurance. Two months later, AmSouth Bank succeeded First American National Bank as the loan holder. In 2004, the Allens attempted to file a claim on the disability policy but were told by AmSouth Bank that no such policy existed. Regions Bank subsequently acquired the loan from AmSouth via merger. In October 2007, Regions Bank mailed an explanation of its merger with AmSouth Bank to the Allens. A lengthy “Consumer Disclosure Booklet” (booklet) which purported to constitute a new agreement relative to deposit accounts was also included. The booklet stated that a “dispute regarding whether a particular controversy is subject to arbitration, including any claim of unconscionability and any dispute over the scope or validity of this agreement to arbitrate disputes or of this entire Agreement, shall be decided by the arbitrator(s).” Additionally, the booklet stated the arbitration provision shall “also apply to any account, contract, loan, transaction, business, contact, interaction or relationship you may have” with the bank. In 2008, the Allens again sought to make a claim under the policy. Both Regions Bank and Union Security Life Insurance Company denied the existence of an insurance policy. The Allens filed suit alleging breach of trust, breach of insurance agreement, fraud and misrepresentation, and bad faith. Regions Bank responded by filing a motion to compel arbitration pursuant to a document the Allens signed in 2001 in order to open a demand deposit account with AmSouth Bank. Regions Bank invoked that document’s requirement that the parties arbitrate any dispute that might arise between them. The District Court denied the bank’s motion to compel arbitration because the booklet mailed to the Allens in 2007 did not unambiguously modify the underlying loan agreement. The court held that although an enforceable arbitration clause existed as to deposit accounts, the arbitration clause in the booklet was not applicable to a loan agreement. Regions Bank appealed. Both parties agreed that the Federal Arbitration Act (FAA) applied to the case. Citing Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), the Fifth Circuit stated that two types of validity disputes arise under the FAA: “One type challenges specifically the validity of the agreement to arbitrate,” and “[t]he other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid.” (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006)). Because Section 2 of the FAA allows arbitration if the “written provision” that mandates the arbitration is not subject to revocation under the usual grounds in law and equity, a court may still require arbitration of a dispute where the arbitration provision itself is not challenged. Additionally, the Fifth Circuit cited the severability rule from Buckeye, stating, “a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.” Meanwhile, where an entire agreement is simply for arbitration, the Fifth Circuit stated a challenge must be to the validity of the specific provision in the arbitration agreement for a court to hear it. The Allens failed to address the validity of the contract and, “the agreement itself, as far as it reached, was never found to be invalid nor was it even challenged as being invalid.” Also, the Allens did not allege the agreement to arbitrate was invalid due to unconscionability or other such defects. Instead, they argued that the way the agreements were written did not lead clearly to the application of the arbitration provision to the consumer loan dispute. According to the Court, their challenge merely addressed the applicability, not the validity of the agreement. Because there was no question that an arbitration agreement existed between the parties, the Fifth Circuit addressed whether the question of arbitrability was for an arbitrator or for a Court to decide. Despite the general rule that a court decides whether there is an agreement to arbitrate a dispute, the issue of arbitrability is for an arbitrator when the evidence clearly demonstrates that was the parties’ agreement. The Fifth Circuit concluded that the parties had clearly intended for the issue of arbitrability to be arbitrated based on the wording of the arbitration provision contained within the booklet mailed by Regions Bank. The Court also concluded that the Allens had accepted the arbitration language contained in the booklet because they continued to use their deposit account and signed signature cards. The Fifth Circuit Court vacated and remanded the lower court’s denial of Regions Bank’s motion to compel arbitration. “Disputing” has been covering the debate: “Who decides arbitrability: courts or arbitrators?” for several years: Last month, we discussed an article written by Allan Dinkoff from Weil Gotshal & Manges LLP which addressed the effect of Rent-A-Center, West, Inc. v. Jackson (case discussed here) on the writing of arbitration clauses here. In June, we discussed the U.S. Supreme decision in Granite Rock v. Teamsters, here. Guest blogger James M. Gaitis discussed Rent-A-Center, West, here, and Professor Alan Scott Rau wrote on the case here. Technorati Tags: law, ADR, arbitration