Texas Bar Journal September 2010 | Volume 73, 8 This issue features an interesting article entitled “What You Always Wanted to Know About Arbitration” written by Scott D. Marrs and Sean P. Milligan. The article seeks to answer five key arbitration questions recently decided by the courts: 1. Can the parties agree that an arbitration award is appealable? In Hall Street Associates, Inc. v. Mattel, Inc., No. 06-989, 552 U.S. 576 (2008), the U.S. Supreme Court held that contractual agreements to expand judicial review in arbitrations governed by the Federal Arbitration Act are prohibited and unenforceable, but left open the possibility that state law might provide a basis for expanded review. 2. Under what circumstances does a party waive its right to arbitrate? The Texas Supreme Court in Perry Homes v. Cull, No. 05-0882, 258 S.W.3d 580 (Tex. 2008), cert. denied 129 S. Ct. 952, utilized a totality of circumstances test when determining whether waiver has occurred. Those factors include: which party invoked arbitration, the length of time the moving party waited prior to invoking arbitration, whether or not the party invoking arbitration was previously aware of the alternative dispute resolution clause, how much activity was related to the merits of the case rather than arbitrability or jurisdiction, the expense and time incurred in litigation, whether or not the moving party had previously opposed arbitration, filed affirmative claims or dispositive motions in the case, whether arbitration would preclude important discovery, whether activity in court would be duplicated in arbitration and the pending trial date, if set. 3. What effect does an unconscionable contract provision within an agreement have on enforceability of the arbitration clause contained therein? In Security Service Federal Credit Union v. Sanders, No. 04-07-00540-CV, 264 S.W.3d 292 (Tex. App 2008) the Court of Appeals of Texas held that an illegal or unenforceable contract provision can be severed and the remainder of the contract may be enforced if intended by the parties. 4. Do arbitrators have the power to compel discovery from non-parties? Although the Second Circuit has stated arbitrators may order a non-party to an arbitration to produce documents so long as that person is called as a witness at the hearing, recent case law has adopted a limited view of an arbitrator’s power to compel discovery from non-parties. 5. Are heirs and beneficiaries bound by a decedent’s arbitration agreement? In the majority of states, including Texas, the answer to this question depends on whether the wrongful death action is an independent or derivative cause of action under state law. In such states, beneficiaries are bound by a decedent’s agreement to arbitrate in a derivative action. You can read the full article here. Technorati Tags: ADR, law, arbitration

The Third Circuit Court of Hawaii reported mid-year statistics for its Foreclosure Mediation Pilot Project (FMPP) in the Summer 2010 Center for Alternative Dispute Resolution Newsletter, ADR Times. Launched in November 2009, the FMPP allows borrower-occupants facing judicial foreclosure to request mediation through the program. Once a request is submitted to the court, the case is then scheduled for a judicial conference in which a judge determines whether to order mediation. As of June 30th, 31 cases qualified for the FMPP, 27 requests for mediation were received and 18 judicial conferences were held. Of those cases, 12 were ordered to mediation, seven mediations were held and four cases reached agreement. Additionally, five cases are currently pending. The project is slated to continue through October 31, 2010. Read the full article here. Technorati Tags: ADR, law, arbitration

By Holly Hayes Over opposition of the New York State’s medical society, last week, Gov. David A. Paterson signed a bill — the New York Palliative Care Information Act — which requires physicians treating patients with a terminal illness to “offer them or their representatives information about prognosis and options for end-of-life care, including aggressive pain management and hospice care as well as the possibilities for further life-sustaining treatment”. See the New York Times article here. A study last week in The New England Journal of Medicine found that among 151 patients newly diagnosed with metastatic lung cancer, those who chose to receive palliative care, or care focused on symptoms, as well as standard cancer therapy reported they had a better quality of life, they experienced less depression, they were less likely to be given aggressive end-of-life care and they lived approximately three months longer than patients who received only cancer treatment. In the August 2 issue of The New Yorker, Atul Gawande, authored an article titled, “Letting Go, What should medicine do when it can’t save your life?” See the full article here. Gawande is a surgeon and a writer, and is a staff member of Brigham and Women’s Hospital, the Dana Farber Cancer Institute, and the New Yorker magazine. Read more about Dr. Gawande here. His article gives riveting, detailed examples of our current approach to end-of-life care in the US. In April, we wrote about being able to say no to costly end-of-life care to improve end-of-life comfort care. See more here. We referenced William Ury’s book, The Power of a Positive No whose preface begins with a discussion of his daughter’s illness and his family’s “long journey through the medical system.” He says, “I realize the process has called on all of the skills I have learned over the years in helping others get to Yes with their negotiation issues. I also realized that, for me personally, the key skill I needed to develop to protect my daughter and our family was saying No.” Everyone says no, the difference for Ury was that “my Nos needed to be nice.” The New York law appears to be one step in the process of promoting open discussion about care options between physicians and patients. According to one palliative care expert, the law is not enough. Dr. Diane E. Meier, director of the Hertzberg Palliative Care Institute at Mount Sinai School of Medicine in New York, said in an interview that the law does not help doctors and nurses acquire the expertise they need to hold meaningful end-of-life discussions with their patients. To increase competency in palliative care, she said, courses in medical and nursing schools and a continuing-education requirement for practicing physicians are essential. “Doctors need to know how to identify when patients are on the decline, be able to initiate conversations with patients and/or family members, discuss what to expect in the future and the pros and cons of alternative care options, and know how to provide support as a patient’s illness progresses,” Dr. Meier said. Perhaps there is a role for dispute resolution experts in helping our nation’s caregivers develop “the expertise they need to hold meaningful end-of-life discussions with their patients”. 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.

We invite you to read Donald R. Philbin, Jr. and Audrey Lynn Maness‘ latest Fifth Circuit law review article, Still Litigating Arbitration in the Fifth Circuit, But Less Often, 42 Tex. Tech L. Rev. 551 (2010). Here is an excerpt: Arbitration remains under national klieg lights. It has “become a wide-ranging surrogate for civil litigation” in a wider variety of contracts than at any time in our nation?s history. This increased use has revealed stress fractures and drawn criticism. Congress has reacted, too: A party to a recent Fifth Circuit case was the impetus for the Franken Amendment, even though she ultimately won the right to take most of her claims to court. Other bills seek to exclude entire classes of claims (consumer, employee, franchise, and civil rights) from arbitration and to redraw the procedural line between decisions made by a court and decisions left to the arbitrator when the parties so provide. Arbitration is also being criticized in business circles for becoming “arbigation.” But change has not awaited policy shifts, raising more questions about whether blunt legislative changes are necessary when commercial and judicial scalpels appear to be working. Pressure release valves, like unconscionability challenges, have been growing in popularity and use despite repeated petitions for writs of certiorari seeking to level geographic differences. That may change. The U.S. Supreme Court recently granted certiorari in a Ninth Circuit case to decide whether courts or arbitrators should decide unconscionability challenges to arbitration agreements when the parties clearly and unmistakably assign that gateway decision to the arbitrator. While major U.S. corporations expected overall disputes to increase in these tough economic times, one study indicates that corporations prefer to resolve their domestic disputes in litigation. This preference is already permeating standard contracts. The American Institute of Architects? widely used template for building contracts has changed arbitration from the default procedure to a mere party option. Even those that have not modified their standard contracts have focused on early case assessment, mediation, and tailored arbitration. While mediation is frequently used, and may be the current default procedure, it was not controversial enough to generate a Fifth Circuit opinion during this survey period. “In the current „toolbox? of approaches to conflict, mediation is the equivalent of a multi-functional Swiss-Army knife.” But lest anyone overstate the demise of commercial arbitration, the American Arbitration Association reports business arbitration to be relatively stable.10 And other studies show that it is still viewed as less costly and quicker than litigation. The article may be downloaded (for free) here. Technorati Tags: law, ADR, arbitration