The international law firm of Skadden, Arps, Slate, Meagher & Flom LLP has just published its Spring/Summer 2010 Newsletter. This edition has several interesting articles, including “Enforcement of Non-Domestic Arbitral Awards in China.” Here is an excerpt: The ability of parties to international contracts to enforce Hong Kong arbitral awards in China is crucially important to Hong Kong’s future as a leading regional arbitration center — Hong Kong being generally perceived as a user-friendly and neutral venue for the resolution through arbitration of business disputes between Chinese and foreign enterprises. An important milestone was reached when, on Dec. 30, 2009, the enforceability of Hong Kong arbitral awards in Mainland China was confirmed and reinforced by a notice of the Supreme People’s Court, the highest judicial body in China. This article examines the legal framework for the enforcement of non-domestic arbitral awards in China and observes that the judicial system there is continuing its evolution towards a full recognition of the needs of international business to have certainty over the ability to enforce international arbitration awards in Mainland China, including those made in Hong Kong. You may download the entire newsletter (for free) here. Technorati Tags: law, ADR, arbitration

By Don Philbin As a student of decision errors in litigation, I was happy to see another empirical study come out this week confirming what we already know with increasing confidence – even well-trained lawyers are subject to the cognitive errors that throw humans’ calibrations off target. We all have to be confident to get out of bed. Parties assigned to buy or sell a house, car, or lawsuit reach different valuations depending simply on which side of the trade they are assigned. And if we think we have some measure of control over the outcome, of course our chances of reaching it are increased. Add to that the ethical obligation of zealous advocacy and you have the caldron from which overly optimistic case assessments flow. In Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, four psychologists (one is also a law professor) make a series of observations based on collected research and their own sample of 481 attorneys across the country. Each attorney was asked to state a minimum goal for cases set for trial in six to 12 months, and to self measure their confidence in reaching that outcome. The well-written statistical paper dove into the following areas: people establish goals they assess the probability of achieving those goals lawyers make predictions in their cases litigation is risky, time consuming, and expensive decision errors can be costly for the lawyer and client attorney’s estimate of the probability of success is the most important variable in shaping the decision to settle or litigate a case overconfidence is ubiquitous overestimation is more common on more difficult tasks lawyers need to feel and display overconfidence to attract clients a certain outcome may seem more probable simply because of a desire to reach it when an event is perceived to be controllable, overconfidence is even more likely lawyers may underestimate the extent to which situational factors may rob them of the ability to control the outcome 64% of female and 55% of male attorneys achieved their minimum goals there was no difference in calibration accuracy based on lawyer experience 18% of lawyers were very or somewhat disappointed with the case outcome, even though 43% failed to achieve their stated minimum goal biased assessments came with high confidence we anchor on first numbers – we make biased assessments and fail to adjust sufficiently for uncertainty, even when specifically asked to do so merely imagining an event can increase subjective probability assessments that it will occur mediators and other third-parties can help temper metacognitive biases The authors agree in the context of litigation with another famous study: “It can be argued that people’s willingness to engage in military, legal, and other costly battles would be reduced if they had a more realistic assessment of their chances of success. We doubt that the benefits of overconfidence outweigh its costs.” This study found clear evidence of unrealistic litigation goals with no calibration improvement when ask to consider case weaknesses that could derail those goals. Mediators and settlement counsel help offset these rosy assessments and tools are being developed that allow attorneys and parties to check their assessments against historical data and known decision error rates. More about that soon… Technorati Tags: law, ADR, arbitration Don Philbin is an AV-rated attorney-mediator, negotiation consultant and trainer, and arbitrator. He has resolved disputes and crafted deals for more than 20-years as a commercial litigator, general counsel, and president of communications and technology-related companies. Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels, including CPR’s Panels of Distinguished Neutrals. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation Committee, and a member of the ADR Section Council of the State Bar of Texas. Don is a Fellow of the American Academy of Civil Trial Mediators and is listed in The Best Lawyers in America (Dispute Resolution), Texas Super Lawyers (2010), The Best Lawyers in San Antonio, and the Bar Register of Preeminent Lawyers.

By Holly Hayes After hearing Dan O’Connell speak earlier this month, I found this on-line presentation by Dan titled, Bad behavior — preparing for and dealing with disruptive behavior by providers. Dan is a clinical psychologist who works as an educator, consultant, clinician, department chair and executive director in medical and behavioral health settings. He suggests health care organizations develop a positive, proactive statement of expected physician behavior to address any behavioral concerns that arise and gives an example: Members of the group behave as healers, leaders and partners. As healers they attend to the emotional as well as the technical needs of their patients. Patient needs are foremost in shaping their response in any situation. As leaders they positively work on solving problems and reject blaming, cynicism and divisiveness. Their behavior and attitude exemplifies maturity, respect, ethical sensitivity and self discipline. As partners they contribute to an attitude of collegiality, cooperation, civility and foster trust and transparency. Dan references The Joint Commission code of conduct and recommends applying the code formally and informally by making “physician or nurse behavior discussable by any member of the group or staff by teaching and rewarding assertiveness and crucial conversations” and utilizing a “facilitator/intermediary much more readily” in resolving conflict. He suggests utilizing a “consistent and equitable reporting system” that applies to all staff and respects due process, as well as establishing a “progressive discipline approach” that is consistent with existing staff bylaws and labor agreements. Read more about our posts on disruptive behavior in health care here. We welcome your comments. 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.

Following are links to noteworthy commentary about the recent U.S. Supreme Court decision on Stolt-Nielsen S.A. et al. v. AnimalFeeds Int’l Corp., No. 08-1198, April 27, 2010. The Court’s decision may be downloaded here. GUEST POST: Stolt-Nielsen Opens More Doors Than It Closes, S.I. Strong, Disputing (May 6, 2010) Goldman’s Take on AnimalFeeds, Alvin Goldman, ADR Prof Blog (May 3, 2010) US Supreme Court Rejects Non-Consensual Class Arbitration, Aren Goldsmith, Kluwer Arbitration Blog (May 4, 2010) Supremes Hold Public Policy Prevents Class Action Arbitration When The Contract Is Silent, Mitchell H. Rubinstein, Adjunct Law Prof Blog (April 30, 2010) Sternlight on Stolt-Nielsen v. AnimalFeeds, Jean R. Sternlight, ADR Prof Blog (April 29, 2010) More on Stolt-Nielsen v. AnimalFeeds, Paul Kirgis, ADR Prof Blog (April 29, 2010) No Class Arbitration Without Agreement,Vivian Wang, SCOTUS Blog (April 29, 2010) GUEST-POST: Professor Stipanowich Comments on Stolt-Nielsen v. AnimalFeeds, Disputing (April 28, 2010) Supremes Decide Stolt on Class-Action Arbitration, Richard Bales, Workplace Prof Blog (April 27, 2010) Stolt-Nielsen v. Animalfeeds — Major Victory for Business, Sarah Cole, ADR Prof Blog (April 27, 2010) Technorati Tags: law, ADR, arbitration