By Kent B. Scott and Cody W. Wilson For mediation to work the way it is supposed to, the parties must be willing to speak candidly with the mediator, and they will not do this unless they know that the mediation is private and what they say and do in mediation will be kept confidential. Given the need for confidentiality, is there a legal basis for it? There is no federal law protecting mediation communications, although there are protections for settlement discussions that could apply to mediation. However, most states have laws protecting the confidentiality of mediation to one degree or another. The importance of confidentiality to mediation was recognized by the National Conference of Commissioners on Uniform State Laws (NCCUSL), which created the Uniform Mediation Act (UMA) and, with the support of the American Bar Association, proposed its adoption by the states. Under the UMA (which a few states have already enacted and some others are considering), unless an exception in the UMA applies, a mediation communication (i.e., statements made and information exchanged with the mediator) in a mediation are privileged and not subject to discovery or admissible in evidence in a proceeding unless waived. There are several exceptions to the confidentiality privilege. However, courts often require a high threshold of proof to overcome the confidentiality protection afforded by mediation. Confidentiality also applies in court-annexed mediation. The judge who is assigned to the case may not be given any information about what took place during the mediation process. In that situation, the referring court is entitled to learn only three things about the mediation proceedings: whether any party failed to participate in good faith; the outcome of the mediation; and if the dispute settled in whole or in part, the terms of the settlement (which is usually provided to the court in the form of a summary agreement). Absent a statute or a public policy requirement, courts will not go beyond the face of the mediation settlement agreement itself to determine the parties’ intent. It should be noted that the UMA does not provide for confidentiality outside of judicial, arbitral or other formal proceedings. Thus, it would not prevent a mediating party from making disclosures about the mediation to the press. To obtain that level of confidentiality, the parties should enter into a private confidentiality agreement that contains enforcement mechanisms. If mediation is conducted under the rules of a particular provider, it may have a provision on confidentiality. An example is the American Arbitration Association Rule M-9 (privacy) in the AAA commercial mediation rules says that mediation is a private proceeding. Rule M-10 (confidentiality) requires the mediator to maintain the confidentiality of information disclosed by the parties and all documents the mediator received in connection with the mediation. This includes not testifying in any proceeding about the mediation. The rule also calls for the parties to maintain the confidentiality of mediation. In furtherance of confidentiality, Rule M-11 does not allow for a stenographic record of mediation proceedings. In addition to the above, the mediator may have a confidentiality provision in his or her retainer agreement. So there are confidentiality protections for mediation. As a result, what happens in mediation tends to stay there. Part IV of this series will discuss the mediation settlement. 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.

The International Bar Association (IBA) has approved a new version of its Rules on the Taking of Evidence in International Arbitration. The revised version (discussed here) was approved with minor amendments. The revised Rules will apply to all arbitrations in which the parties agree to apply the IBA Rules after May 29, 2010. Among the key updates and revisions are the following: An obligation on the tribunal to consult the parties at the earliest appropriate time with a view to agreeing on an efficient, economical and fair process for taking evidence. It also includes a non-exhaustive list of matters which such ‘consultation’ may address. Greater guidance to the tribunal on how to address requests for documents or information maintained in electronic form – so-called ‘e-disclosure.’ Similarly, the revisions give greater guidance as to requests for documents in the possession of third parties. Expansion of confidentiality protections respecting both documents produced pursuant to document requests and documents submitted by a party in support of its own case and documents introduced by third parties. Greater clarity respecting the contents of expert reports and in particular the requirement to describe the instructions given to the expert and a statement of his or her independence from the parties, legal advisers and tribunal; the revised IBA Rules also foresee the provision of evidence in reply to expert reports. An obligation on witnesses to appear for oral testimony at a hearing only if their appearance has been requested by any party or the tribunal; the revised IBA Rules also provide for the use of videoconference or similar technology. More specific guidance respecting issues of legal impediment or privilege, including the need to maintain fairness and equality particularly if the parties are subject to different legal or ethical rules. Incorporation of an express requirement of good faith in taking evidence coupled with an empowerment of the tribunal to consider lack of good faith in the awarding of costs. Deletion of the word ‘commercial’ from the title, in recognition of the potential equal application to ‘non-commercial’ arbitrations such as investment treaty-based disputes. The final version is available for download here. Technorati Tags: ADR, law, arbitration

By Holly Hayes How big is the issue of conflict in healthcare? The accrediting body for hospitals, The Joint Commission, issued standard (LD.01.03.01) in January 2009 recognizing the need to better manage conflict in the healthcare setting. The Standard states: “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” During on-site accreditation visits, The Joint Commission reviewers “score” the Standard by reviewing the hospital’s code of conduct which defines acceptable, disruptive, and inappropriate behaviors; and by examining the hospital’s process for managing disruptive and inappropriate behaviors. The need to manage conflict in the healthcare setting is not new. Much has been written about disruptive behaviors creating breakdowns in the teamwork, collaboration and communication needed to deliver high quality patient care. A study by The Institute for Safe Medication Practices (ISMP) found that forty percent of clinicians have remained passive or kept quiet during patient care events rather than confront a known intimidator. A survey conducted by the American College of Physician Executives (ACPE) published in November 2009 indicates there is still work to be done in this area. According to anonymous responses to a national survey of 13,000 physician and nurse executives, ninety-seven percent experienced unprofessional outbursts and overreactions, with the majority saying these happened several times a year and sometimes weekly. In this time of rising healthcare costs, hospitals who fail to address disruptive behavior face staff turnover issues that can cost up to 1.5 to 1.8 times the amount in salary dollars to hire and train a skilled nurse. A December 2009 article in Trustee magazine stated nurses consider disruptive behavior to be the most important factor influencing their morale and job satisfaction. In one survey, as many as thirty-one percent of nurses knew of at least one of their nurse colleagues who left a hospital because of disruptive behavior. Most important is the effect on patient safety and the quality of care. The ISMP survey found that nearly fifty percent of clinicians felt pressured to administer or dispense a drug even though they had serious concerns about its safety. Forty percent were too intimated to question medication orders given by a clinician with a reputation for abusive behavior. Another survey stated that seventeen percent of hospital staff believed disruptive behavior had been the cause of an adverse event. Safety issues arise when something negative has occurred or because something positive hasn’t been done. In each case, it requires trust for staff or patients to report the issue. How does a hospital create a culture of trust and healthy communication? A spectrum of healthcare conflict resolution might begin with actions to Prevent an incident from occurring. Hospitals typically put in place policies, training, monitoring and accountability as well as a code of conduct to prevent disruptive behavior and promote acceptable behaviors. In an effort to prevent disruptive behaviors among healthcare providers, The Joint Commission recommends that health care organizations take 11 specific steps, including the following: Educate all health care team members about professional behavior. Hold all team members accountable for modeling desirable behaviors, and enforce the code of conduct consistently and equitably. If an incident of disruptive behavior occurs, the hospital must then Respond. Hospitals may be organized around a Department of Performance Improvement (PI), a Department of Quality or a Department of Risk Management or a combination of two or more to respond to conflict and manage the resolution process. To respond to conflict, The Joint Commission recommends hospitals: Establish a comprehensive approach to addressing intimidating and disruptive behaviors that includes a zero tolerance policy; strong involvement and support from physician leadership; reducing fears of retribution against those who report intimidating and disruptive behaviors; empathizing with and apologizing to patients and families who are involved in or witness intimidating or disruptive behaviors. Develop a system to detect and receive reports of unprofessional behavior, and use non-confrontational interaction strategies to address intimidating and disruptive behaviors within the context of an organizational commitment to the health and well-being of all staff and patients. The final step in the spectrum of healthcare conflict management is to Measure Performance to pro-actively focus on areas of greatest need. Hospitals can review data sources including: patient satisfaction surveys, patient complaint data, staff satisfaction surveys, exit interviews, physician satisfaction surveys, incident reports, culture of safety surveys and lawsuits to focus efforts to prevent conflict from arising. Where does mediation fit in a process for conflict management? If a possible spectrum of conflict resolution in healthcare begins with actions to Prevent conflict, implements a process to Respond to conflicts that do occur and finally Measures Performance over time to identify areas for improvement, where does mediation fit? Mediation skills can be pro-actively taught to all hospital staff to prevent conflict. Mediation skills can be implemented as a tool to decrease escalation of a dispute. Outside mediators or internal staff can conduct mediations as a non-confrontational strategy to address disruptive behaviors, improve the working relationships of the parties involved and enhance teamwork and patient safety. Physician and nurse executive respondents to the ACEP survey were asked to give solutions to decrease disruptive behavior. They listed: setting clear expectations, implementing consistent enforcement and focusing on teamwork. Training staff in mediation skills can help set expectations of and provide tools for appropriate behavior. An outside, neutral mediator can be hired or contracted on a contingency/as-needed basis or internal staff can be trained in mediation techniques to be part of a process to implement consistent enforcement of appropriate behavior. By its nature, mediation has a critical place in healthcare as organizations focus on increasing patient safety by building relationships and enhancing trust and teamwork among caregivers. [Ed. note: the contents of this post appeared first in Texas Mediator, Volume 24, Number 3, Spring 2010.] 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. […]

Via the ADR Prof Blog, we learned that on May 19, the U.S. Securities and Exchange Commission (SEC) published for public comment a FINRA Rule Change Relating to Amending the Codes of Arbitration Procedure to Increase the Number of Arbitrators on Lists Generated by the Neutral List Selection System. Find the text of the proposed rule change here. The comment period expires on June 16, 2010. All Comments should refer to File Number SR-FINRA-2010-022 and may be submitted: At the SEC’s website: http://www.sec.gov/rules/sro.shtml Via email to: rule-comments@sec.gov , or Via regular mail (in triplicate) to: Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. Technorati Tags: ADR, law, arbitration