The following excerpt is from David Hechler, published by Corporate Counsel: The global recession has led to a spike in cross-border commercial disputes, which in turn has led to a rise in international arbitration. But even as more companies turn to arbitration, many in-house lawyers complain that the process, at its worst, can be as costly and time-consuming as litigation. Now an advocacy organization called the Corporate Counsel International Arbitration Group is highlighting the problems in order to encourage reform. Though CCIAG was launched three years ago, it’s just beginning to make its influence felt. The Paris-based group is composed of 50 large multinationals, including General Electric Company, Exxon Mobil Corp. and Siemens AG. Roland Schroeder, a member of CCIAG’s steering committee, said that no one he knows who uses arbitration regularly is happy with it. A senior counsel in General Electric’s Connecticut headquarters, Schroeder coordinates GE’s international arbitration policy. And the dissatisfaction he hears from other in-house lawyers goes well beyond the common complaint that arbitrators resolve disputes by splitting the baby. Schroeder said that in his own experience, one of every ten arbitrations may be excellent, and another one or two pretty good, but the rest are generally unsatisfactory. Some disappointing results may technically be “victories,” after which an arbitrator will demand: “How can you be unhappy? You won!” To which Schroeder counters: “Yeah, but it took six years. And it should have been two. Or six months.” The problem with an interminable arbitration isn’t just that it costs more, Schroeder explained. A dispute may revolve around language also used in other contracts. And until the dispute is resolved, the business doesn’t know whether it needs to change the language. Nevertheless, most major institutions that administer international arbitrations report that their caseloads in 2008 (the most recent year for which data is available) increased over 2007. The jump at the London Court of International Arbitration was 55 percent; at the China International Economic and Trade Arbitration Commission, 28 percent; and at the American Arbitration Association’s International Centre for Dispute Resolution, 13 percent. Arbitration’s attraction has a lot to do with companies’ aversion to litigation. “No one has liked [litigation] for a long time,” says MaryBeth Wilkinson, a partner in the Chicago office of Lovells, “but it’s coming to resemble paranoia.” This attitude is most commonly directed at the United States and other common law countries where discovery can be especially burdensome. According to Wilkinson, more businesses now seek to “U.S.-proof” their transactions by insisting on international arbitration clauses. She added that electronic discovery “is the key factor because of its expense.” Plus, when a dispute is cross-border, few companies want to face trial in an adversary’s home court. Arbitration is seen as cheaper, faster, and fairer — because the parties can choose the arbitrators. It’s also confidential. And if it’s held in one of the 144 countries that signed the New York Convention of 1958, the award is enforceable in all signatory countries. That’s a big advantage over court judgments, which may be difficult to enforce. “Arbitration is like a tough game of golf rather than the war of litigation,” Wilkinson said. Read the entire article here. Technorati Tags: ADR, law, arbitration

[Ed. note: hat tip to our blog contributor Don Philbin.] The Fourteenth Court of Appeals of Texas held that silence does not create a contract to pay a mediation cancellation fee. In The Levin Group, PC v. Sigmon, no. 14-08-01165-CV (Tex.App.-Houston [14th Dist.] Jan. 21, 2010) the Levin Law Group, P.C. (LLG) sued Ernesto de Andre Sigmon for breach of an agreement to mediate the underlying civil lawsuit. Alan F. Levin, the principal at LLG, was hired as a mediator. Ernesto de Andre Sigmon, Allan G. Levine, and Don Fogel were the plaintiff’s attorneys. On January 25, 2008, Allan G. Levine contacted LLG to obtain potential dates for a mediation. Then, Levine contacted the rest of the plaintiff’s attorneys and the defendant’s attorney. They “settled on February 8, 2008” to mediate the dispute. Levine confirmed the date with LLG’s office. On January 29, LLG faxed a letter containing the mediation information to all three attorneys. LLG also faxed an “Attorney Confidential Information Sheet and Request for Mediation” form (the “mediation request form”), and a “Rules for Mediation” form (the “mediation rules form”). The mediation rules form contained the following paragraph: CANCELLATION/RESCHEDULING FEE AGREEMENT. ONCE A CASE HAS BEEN SET FOR MEDIATION, THE ATTORNEYS AND THE PARTIES RECOGNIZE THAT THE MEDIATOR’S CALENDAR HAS BEEN RESERVED, AND THEY MUST THEREFORE PROVIDE THE MEDIATOR AT LEAST TWO (2) WEEKS ADVANCE WRITTEN NOTICE OF CANCELLATION/RESCHEDULING. IN THE ABSENCE OF SUCH ADVANCE WRITTEN NOTICE, THE ATTORNEYS AND PARTIES AGREE TO AND SHALL PAY THE MEDIATOR FIFTY PERCENT (50%) OF THE TOTAL MEDIATION FEE FOR THE DAY(S) AS AN AGREED CANCELLATION/RESCHEDULING FEE. THIS RULE ALSO APPLIES TO MEDIATIONS SCHEDULED LESS THAN TWO (2) WEEKS IN ADVANCE OF THE MEDIATION DATE. Sigmon neither completed nor signed the mediation request form. Sigmon’s client was unable to attend in person, but offered to be available by telephone. Fogel objected and the mediation was canceled. In April 2008, LLG sued Sigmon alleging breach of contract because Sigmon had refused to pay the mediation cancellation fee. The total fee for the mediation was $6,375; thus the cancellation/rescheduling fee would be $3,187.50. The trial court granted Sigmon’s summary judgment motion and LLG now appeals. LLG claimed that a fact issue existed concerning whether Sigmon accepted the terms of the mediation by scheduling the date and failing to object to any of the terms contained in the mediation agreement. The court first outlined the legal standard for summary judgment. Then proceeded to discuss the enforceability of the contract. The court stated that a binding contract must have an offer and acceptance, and that acceptance must be in strict compliance with the terms of the offer. The court noted that the mediation terms were communicated to Sigmon after the mediation was scheduled. Therefore, the court reasoned that Sigmon’s agreement to mediate the dispute does not support an inference that Sigmon agreed to the mediation rules or cancellation fees. And that not objecting to the terms of the mediation does not indicate acceptance of LLG’s mediation rules. In addition, the court reasoned that because LLG’s mediation rules required personal attendance, that was an offer. Sigmon rejected that offer by saying that his client would attend by telephone. The court said that Sigmon’s rejection could be deemed a counter-offer, which was rejected by Fogel. The court stated that the “communications between the parties and the acts and circumstances surrounding those communications in this case indicate that there was no meeting of the minds, and thus no offer and acceptance, regarding the essential terms of the mediation.” Finally, the court said that “Sigmon conclusively established that he did not accept the terms of the mediation specified in the letters faxed by LLG, the mediation rules form, or the mediation agreement form – an essential element of LLG’s breach of contract claim.” Accordingly, the court affirmed the granting of summary judgment to Sigmon. Technorati Tags: ADR, law, mediation

By Holly Hayes Difficult situations arise every day in the health care setting, between staff and patients, between staff and family members, between physicians and nurses, between staff and administration. In the national bestseller, Getting to YES, a universally applicable method for addressing conflict resolution is offered by Roger Fisher and William Ury. This post, the first in a five-part series, applies this method specifically to healthcare. For example, a health care conflict over signing verbal orders might occur like this: Nurse: Dr. I have your verbal orders noted in the patient’s chart. I wondered when you might be in to sign them, since it is the weekend and I know you said you were going out of town. By the way, I hope you have a great time with your family. What I mean to say is, I just wanted to be sure that the orders are signed within 48 hours. Physician: Nurse, I don’t know why you would question me about signing my verbal orders within 48 hours. I know the rules as well as you do. I would think that knowing me as well as you do, you would know that my patient’s come first and that is what we should both be worried about. Now, I know you don’t want to create any problems, so we can just forget this conversation ever took place. Nurse: Yes, sir. Have a great trip. What happened in this situation? The nurse and the physician engaged in Positional Bargaining. The nurse was soft on the problem. Her goal was agreement, she was willing to make concessions to cultivate the relationship. She tried to avoid a contest of will and yielded to pressure. The physician was hard on the problem. His goal was victory. He demanded concessions as a condition of the relationship. He dug into his position and made threats. He insisted on his position, applied pressure and tried to win a contest of will. Let’s change the game and try the scenario again. This time, both parties will use the principled negotiation method. They will: Separate the people from the problem. Focus on interests, not positions. Generate a variety of possibilities before deciding what to do. Insist that the result be based on some objective standard. Nurse: Dr. I have your verbal orders noted. I heard you say you would be out of town, Did you have a plan for signing these verbal orders as required by the hospital bylaws? Physician: I am out of town, Nurse, and I know your unit has a focused effort on obtaining a signature of verbal orders within the 48-hour requirement. Dr. Y is covering for me and I know he will be on the unit this afternoon. He will be rounding on all my patients. I can send him a text and ask him to be sure to sign the verbal orders this afternoon. Would that be acceptable? Nurse: I will be here this afternoon, too, and I can be sure to ask Dr. Y to sign the verbal orders you just gave me since he is covering for you. That will work for us. Have a great trip, Dr. The principled negotiation method in this situation worked in this way: The focus was the problem – getting the orders signed within 24 hours. The focus was on interests – the nurse wanted her unit to meet the hospital standards; the physician wanted to help her meet the standards and not interrupt his trip. Together, they generated a possibility before deciding what to do – in this case, they generated only one possibility, but could have generated more to find the best solution to the problem. The result was not based on either party’s position, but rather on an objective standard – the requirement of the hospital bylaws. The next post will address strategies for dealing with substantive problems in health care while maintaining good working relationships. We welcome all comments on this post and any suggestions or questions for upcoming posts on this topic. Technorati Tags: Healthcare, ADR 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.

Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog and Allison O’Neal Skinner from the Alabama-based law firm Sirote & Permutt will host the TexasBarCLE Webcast “When to Use eMediation or Special Masters in eDiscovery“ on February 16, 2010 from 2-3:30pm. Here are more details: eDiscovery has changed litigation forever and now litigants need innovative ways to navigate the disputes that inevitably arise with Electronically Stored Information (ESI). This webcast presents two methods for the litigants and the judiciary to use to resolve conflicts arising from eDiscovery: eMediation and Special Masters. Although Mediation is hardly a new process for resolving cases, it is new for resolving discovery disputes. Similarly, the use of Special Masters in litigation is not so common, but with the increase in eDiscovery motion practice, appointments of Special Masters for eDiscovery are increasing. This panel will discuss: – The benefits of eMediation to effectively manage eDiscovery in a unique and productive way. – How and when to use an eMediation. – The various functions the Special Master can serve for the parties and the Court. – The comparative effectiveness of an eMediator versus a Special Master at different pre-trial stages. Below are some highlights: – eMediation allows Information Technology (IT) disclosures to the Mediator in a private caucus which allows frank planning on eDiscovery. – Lawyers at the eMediation can be candid with the Mediator to help avoid contentious and expensive motion practice. – If the eMediation works well and an Mediation eDiscovery Plan (MEP) is prepared, fewer disputes are presented to Judges, which helps preserve the credibility of the litigants. eMediations work best at the outset of litigation, but after an initial MEP is prepared the parties should be prepared to return to the eMediator when specific issue of dispute arise. – A Special Master can be warranted in certain cases which allows a neutral third party to assist the Judge with eDiscovery issues. – The Special Master may assist by (1) overseeing the parties follow the court’s discovery orders, (2) resolving disputed eDiscovery controversies, such as “is the data reasonably accessible?” or “did spoliation occur?”, and (3) determining technical issues. (Register here) Technorati Tags: ADR, law, mediation