Here is an interesting article from the Associated Press: By MICHAEL J. CRUMB, Associated Press Writer Tue Jul 6, 6:17 pm ET DES MOINES, Iowa – Attorneys representing 23 states involved in a class-action lawsuit against Microsoft Corp. have filed a lawsuit over attorney fees against the Iowa lawyer who spearheaded a $179.5 million settlement with the software company. Roxanne Conlin of Des Moines negotiated the 2007 settlement that included $75 million in attorney fees that she split with attorney Richard Hagstrom and the Zelle Hoffmann law firm of Minneapolis. Conlin and Hagstrom filed the lawsuit against Microsoft, which is based in Redmond, Wash., claiming the company engaged in anticompetitive conduct that caused consumers to pay more for software between 1994 and 2006. The settlement was announced in August 2007. The lawsuit claims that attorneys in 23 states provided advice, pleadings, participation and prosecution in the class-action case in their states, and in the Iowa case against Microsoft. The group formed The Microsoft Litigation Consortium. The lawsuit filed last month in Polk County District Court said the group signed an agreement with Conlin that called for the consortium to receive 20 percent of attorney fees awarded in the case. It also said disputes were to be resolved through arbitration. “The attorney fees awarded to (Conlin) at the conclusion of litigation were not shared … in violation of the … agreement,” the lawsuit states. The lawsuit said that Conlin has refused to comply with the agreement and that “on multiple occasions (the consortium) has requested that (Conlin) comply with the … agreement and arbitrate the dispute regarding the fees.” Thomas Hanson, the Des Moines attorney who filed the lawsuit, said it is seeking a court order to force Conlin to enter into arbitration and the decision of how much would be awarded to the consortium and its attorneys would be left to an arbiter. Conlin, who’s a Demcratic seeking to unseat Republican U.S. Sen. Charles Grassley this fall, released a statement Tuesday that said the lawsuit without merit. “This lawsuit … comes more than three years after the case was settled and after they ignored a court order providing for the submission of any legitimate claims,” Conlin said. “These lawyers did not participate in the trial and I’m surprised and disappointed that they would emerge three years later seeking payment for services they never provided.” Technorati Tags: law, ADR, arbitration

Last year, the Federal Trade Commission (FTC) held five round tables in three cities discussing consumer debt collection litigation and arbitration. (read more here) The agency issued this week Repairing a Broken System: Protecting Consumers in Debt Collection and Litigation and Arbitration, a report containing the findings, conclusions, and recommendations. Chapter 3 of the FTC report addresses debt collection in arbitration: The report finds that consumers are not given meaningful choice whether to enter into arbitration and that the debt collection arbitration process is fundamentally unfair to them. Creditors, collectors and arbitration forums should adopt changes to ensure that: (1) consumers are given a meaningful choice about whether to arbitrate and a reasonable method of exercising that choice; (2) neither arbitration forums nor arbitrators are biased or appear to be biased; (3) consumers are given adequate notice of the commencement of arbitration and their costs of participating in arbitration are limited to the costs the consumers would have incurred to defend against similar proceedings in court; (4) arbitrators issue reasoned, written decisions to support their awards; and (5) arbitration and its results are sufficiently transparent to instill confidence in use of arbitration as alternative to the public court system. The FTC will continue to closely monitor, evaluate, and report, as appropriate, on whether debt collection arbitration models are providing consumers with meaningful choice and a fair process. The complete report is available here. Technorati Tags: law, ADR, arbitration

by Holly Hayes The New England Journal of Medicine (NEJM) published on July 13, a summary of the final regulations on “meaningful use” of electronic health records (EHR). The full, final regulation is 864 pages and can be found here. The regulation divides the elements required for “meaningful use” into two groups: first, a set of core objectives that are an essential starting point for meaningful use of EHRs and, second, a menu of additional activities from which providers must choose several to implement in the first 2 years (2011 and 2012). One of the people who has impacted the implementation of EHRs and helped communicate why access to health data matters to ordinary people is Regina Holliday. She tells the story of her fight to obtain access to her husband’s health record during his battle with cancer on her blog, Regina Holliday’s Medical Advocacy Blog. Her compelling, and often heartbreaking, story can be read here. The government has committed unprecedented resources to support the adoption and use of EHRs including incentive payments totaling up to $27 billion over 10 years, or as much as $44,000 (through Medicare) and $63,750 (through Medicaid) per clinician. This funding ties payments to not only adoption of but “meaningful use” of EHRs. Providers must use the technology to create a nationwide system of EHRs that significantly advance health care processes and outcomes. We welcome your comments about the final regulations and implementation of “meaningful use” of ERHs. 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.

By Kent B. Scott and Cody W. Wilson Is the Mediator Like a Judge? Clients who are learning about mediation for the first time invariably want to know whether the mediator can adversely affect their core interests in the dispute. The answer is “no” because the mediator must be neutral and remain so throughout the proceedings. The mediator is not a decision maker and has no authority to require the parties to settle. The decision to settle belongs only to the parties. While judges are supposed to be impartial, they are decision makers. They decide motions and like juries can decide who is right and who is wrong on the merits. This is not the case in mediation. The mediator, even one who takes an evaluative approach, is strictly a facilitator. What mediators do is assist the parties to explore and reconcile their differences. What Should I Bring to the Mediation? Essential items to bring are the documents provided to the mediator and exchanged with the other side (i.e., the mediation and position statements, and documents provided to the adversary), as well as all information requested by the mediator. Optional items should be determined in a discussion with counsel. These could include pleadings, motions, expert reports filed in the case, and charts or time lines that help illustrate key points when making the opening statement or in private meetings with the mediator. What Should I Wear to the Mediation? Mediation is informal so the parties can wear comfortable business attire. Mediation is not the place to be offensive. For example, if the adversary in the mediation is the chairman of the Republican Party, the client should not wear a tie with a donkey on it. How Long Will the Mediation Last? The length of the mediation is important, not only because of cost, but because all necessary participants, including the decision makers for both sides, must be at the mediation for as long as it lasts. The length depends on the complexity of the dispute and how interested both sides are in reaching a settlement. The majority of two-party mediations are completed in eight hours or less. More complex disputes can take more than one day. They can be scheduled for the convenience of the parties over the course of several consecutive days or several days during consecutive weeks. There is no magical length of time in which to conduct a successful mediation. It takes the time necessary for the parties to agree that they have interests in common and that they can satisfy each other’s needs without sacrificing interests that are important to them. However, it is vital that counsel and client commit the time and effort to give the mediation process time to succeed. Part IX of this series will discuss what happens during mediation. Stay tuned. [Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.] Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution. Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com.