Victoria Pynchon at Settle It Now Negotiation Blog wrote these thoughtful New Year’s Resolutions. Check them out! I will practice restraint of tongue and pen When my anger flashes, I will pause to remember that behind every accusation is a plea for help When in the midst of a rancorous debate, I will remember to ask for the story behind the opinion I will remember that each of my fellows is struggling with burdens that, if known, would cause me to respond to them with far greater kindness I will remember that I, too, am subject to fundamental attribution error – over-ascribing intention to those whose behavior causes me real or perceived harm and over-ascribing circumstance to any behavior of mine that causes others real or perceived harm Read the rest here.

The November 2009/January 2010 edition of the Dispute Resolution Journal features “Decisional Errors: Why We Make Them and How to Address Them” written by Disputing‘s contributor Don Philbin. Find Don’s excellent article here. On a related note, Don has recently started sharing his well-known Tweets at his new blog ADR Highlight Reel. Check it out!

by Holly Hayes Health care leaders have known for years that disruptive behaviors are a serious problem. Verbal outbursts, refusing to take part in assigned duties and condescending attitudes all create breakdowns in the teamwork, collaboration and communication needed to deliver patient care. A study by The Institute for Safe Medication Practices (ISMP) found that 40 percent of clinicians have remained passive or kept quiet during patient care events rather than confront a known intimidator. In May, we reviewed an accreditation standard (LD.01.03.01) issued by The Joint Commission in January expected to prompt hospitals to explore an expanded use of mediation to manage conflict in the healthcare setting. Conflict Management Standard LD.01.03.01 states, “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” Elements of Performance, or how The Joint Commission will score the standard, include: Development of a code of conduct that defines acceptable, disruptive, and inappropriate behaviors; and creation and implementation of a process for managing disruptive and inappropriate behaviors. In an effort to put an end to 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; 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. A survey conducted by the American College of Physician Executives published in November, almost one year after the Joint Commission began requiring health care facilities to implement zero-tolerance policies for disruptive behaviors, tells us 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. Physician and nurse executives respondants solutions to decreasing disruptive behavior included: setting clear expectations, implementing consistent enforcement and focusing on teamwork. Mediation is one non-confrontational interaction strategy that can be implemented to resolve conflict, improve the working relationships of the parties involved and enhance teamwork and patient safety. Technorati Tags: Healthcare, ADR, law, mediation 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 F. Peter Phillips This post continues Part I. As drafted, the Arbitration Fairness Act of 2009 (House Bill 1020) would amend Section 2(b) of the FAA to render invalid any pre-dispute arbitration agreement that purports to require arbitration of “an employment, consumer, or franchise dispute.” (“Franchise dispute?” How did that get in there? I would have thought that, subject to FTC regulation and state disclosure requirements, franchise is a pretty straightforward commercial relationship, eminently suitable to arbitration. But, hey, what do I know?) Additionally, the Arbitration Fairness Act would amend Section 2(c) of the FAA to provide that “the validity or enforceability of an agreement to arbitrate [ — not just agreements concerning employment or consumer or franchise disputes — any agreement to arbitrate –] shall be determined by the court, rather than the arbitrator.” This mischievous piece of ineptitude, while presumably aimed at ensuring the invalidity of employment and consumer arbitration “agreements,” undermines the established principles of severability and kompetenz-kompetenz that form the bedrock of international commercial arbitration, and threatens to wreak havoc with international arbitrations whose situs is within the United States. Any commercial party seeking to evade its arbitration obligations need only recite that the agreement concerns employees or consumers or franchises, and the matter automatically goes to the place most international businesspeople consider the darkest pits of hell – an American courtroom. The proposed bill would outlaw all employment arbitration agreements — including agreements contained in contracts negotiated at arm’s-length by senior executives represented by sophisticated counsel. It would ban any arbitration whatsoever, irrespective of the design of the process to ensure procedural fairness. And it seems to be based on the entirely specious assumption that individual employees, the court system, and society at large would be advantaged if the only way aggrieved employees could be vindicated was by suing their employers. (See inferno, above.) The FAA being gutted, the courts being swamped, the bedrock principles of international commercial arbitration being negated, the status of the United States as a reliable situs for international commercial dispute resolution being impugned – all of these evils I lay at the feet of pre-dispute mandatory employment arbitration and the broad indignation that it prompts. Going back to my original anecdote, my concern isn’t for the boulder – it’s for the chisel! The ABA has denounced the proposed legislation, reasoning that “the unintended consequences of arbitration legislation and regulation could materially alter the established legal landscape for international arbitration with respect to the validity of pre-dispute arbitration agreements in a broad range of cases and to the division of authority between the courts and the arbitrators. These changes will have major ramifications for international commercial arbitration in the U.S. and for U.S. businesses in the global marketplace.” Arbitration is a valuable — indeed irreplaceable — tool for managing mercantile transactions. It is time to acknowledge that it has been misused to manage non-commercial relationships. It matters not at all that the Supreme Court permits employment arbitration — short-sighted companies are permitted to do any number of dumb things, including whacking a 300-lb boulder with a wood chisel. The lawyers’ operation may have been a success. But the patient is dying. For recent evidence, note that on December 19, 2009 President Obama signed into law an Act authorizing defense spending. Included in the bill was a provision authored by Senator Al Franken (D-Minn.), prohibiting defense contractors receiving more than one million dollars from entering into any arbitration agreements with employees purporting to require private arbitration of claims arising from Title VII of the Civil Rights Act of 1964. Senator Franken had previously held hearings on this issue, featuring (among others) Jamie Leigh Jones, the former Halliburton employee who was forced to arbitrate a claim of sexual assault, and employment attorney Mark A. deBernardo. Not a great ad for the arbitration process. Here is part of the text of Section 8116 of the Act: SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to: (1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention; or (2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. (b) None of the funds appropriated or otherwise made available by this Act may be expended or any Federal contract awarded more than 180 days after the effective date of this Act unless the contractor certifies that it requires each covered subcontractor to agree not to enter into, and not to take any action to enforce any provision of, any agreement as described in paragraphs (1) and (2) of subsection (a), with respect to any employee or independent contractor performing work related to such subcontract. For purposes of this subsection, a ‘‘covered subcontractor’’ is an entity that has a subcontract in excess of $1,000,000 on a contract subject to subsection (a). Are we going to keep doing this until we utterly ruin the practice of arbitration? Institutions are socially accountable, either in the near term or the long term. If employers keep doing stupid stuff, and if lawyers keep helping them do it, […]