[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

We came across this Mayer Brown LLP article identifying ten characteristics of an enforceable dispute resolution clause. Ten Hallmarks of Effective International Arbitration Agreements By William H. Knull Article – International Arbitration, Litigation & Dispute Resolution, Americas, Asia, Europe 19 January 2010 International arbitration can provide the security of a neutral forum and a framework of enforcement treaties that is far superior to reliance on the other side’s home courts for resolving disputes in international transactions. But a poorly drafted arbitration clause can result in inefficient procedures at best and an unenforceable agreement at worst. This list identifies ten of the most important characteristics of an enforceable, functional dispute resolution clause. 1. Unambiguous agreement to submit to arbitration (“Any dispute or difference arising out of or relating to this agreement shall be finally resolved by arbitration …”). 2. Unambiguous definition of any exceptions to the agreement to arbitrate (if exceptions absolutely cannot be avoided). 3. If arbitration is to be preceded by negotiation or mediation, the time for commencing the arbitration must be unambiguously defined by reference to objective dates or events (“If no agreement has been reached within __ days of the delivery of written notice of the existence of a dispute, either party may serve a request for arbitration …”). 4. Accurate designation of the administering institution (if desired). 5. Designation of the applicable rules. 6. Specification of the site of the arbitration, carefully chosen for the quality of its arbitration jurisprudence and the respect of its courts for the arbitral process. 7. Specification of the number of arbitrators and the means of their selection. 8. Designation of the language of the proceeding. 9. If confidentiality of the proceeding, evidence and award is desired, an explicit provision to that effect that does not rely on assumed, and likely non-existent, provisions in the arbitral rules or applicable law. 10. Definition of any limitations on the power of the arbitrators, such as awarding punitive or consequential damages, injunctive relief, etc., and excluding the arbitrators’ power to alter such limitations. We welcome any additions or comments about this list! Technorati Tags: ADR, law, arbitration