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.

On June 21, 2010, the U.S. Supreme Court decided Rent-A-Center, West v. Jackson. The question presented was: Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (”FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision? We thought you would like to read some interesting commentary about the opinion: Rent-a-Center, West, Inc, v. Jackson: US Supreme Court Decision Applies to Both Domestic and International Arenas, DLA Piper, June 23. Rent-A-Center, West, Inc. v. Jackson and the Ongoing Assault on Party Autonomy, JamesM. Gaitis, Disputing, June 23. Professor Alan Scott Rau Comments on Rent-A-Center, West Inc. v. Jackson, Alan Scott Rau, Disputing, June 22. New rule for deciding validity of agreements to arbitrate arbitration, Scotus Blog, June 21. Victory for Business in Rent-A-Center West v. Jackson, ADR Prof, June 21. Today’s arbitration decision in Rent-A-Center v. Jackson, PrawfsBlawg, June 21. Technorati Tags: law, ADR, arbitration