[update: H.B. 2139 passed the House and Senate (with amendments); the amended version was under consideration by the conference committee when the session ended. See here. ] Today, two bills related to ADR were passed by the 81st Texas Legislature: H.B. 1083. The bill, authored by Rep. Gary Elkins, states that “Except as provided by agreement of the parties, a court may not order mediation in an action that is subject to the Federal Arbitration Act (9 U.S.C. Sections 1-16).” The bill’s history is here. H.B. 2139. Authored by Rep. McClendon, the bill establishes a victim-offender pretrial mediation program for first-time offenders. The bill’s history is here. Technorati Tags: arbitration, ADR, law, mediation

During this Memorial Day holiday, I came across a very interesting article by Victoria Pynchon, a graduate of the prestigious Straus Institute for Dispute Resolution. The piece is a well-written personal anecdote about her volunteer work during the past U.S. presidential campaign. The lesson? you don’t have to be persuasive to persuade. Here is an excerpt: Funny, but I wasn’t really trying to convince her of anything. We were women talking over the fence after hanging our laundry or putting our kids to bed. We connected. We had personal history in common with each other and with candidate Obama. We had shared goals and dreams. Here’s the thing. You can’t make this stuff up and you can’t pursue this type of communication for the purpose of changing someone’s mind. But if someone implicitly asks for your assistance in making an important decision, and if your goal is to help her make her decision instead of the decision you want her to make, you will, at a minimum, create common ground. And once you’ve done that, you can accomplish something constructive together, whether that accomplishment is what you had in mind in the first instance or not. The full article is here: Changing Minds Is Easier When Yours Is Open, Los Angeles Daily Journal, May 19, 2009. Technorati tags: ADR, Victoria Pynchon, Los Angeles Daily Journal, persuasion

By Holly Hayes While the use of mediation for conflict resolution is gaining strength in a number of industries, a recent accreditation standard (LD.01.03.01) issued by The Joint Commission is expected to prompt hospitals to explore an expanded use of mediation to manage conflict in the healthcare setting. The new Leadership Standard: Conflict Management Standard LD.01.03.01 became effective January 2009. The overall standard 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. Mediation is one tool a governing body can approve and a leadership team can implement to manage disruptive behavior among: management and staff, all levels of clinical staff, vendors and hospital staff, governing board members; and patients and staff to name a few. An outside, neutral mediator can be hired or contracted on a contingency/as-needed basis or internal staff can be trained in mediation techniques. By definition, a mediator is impartial and neutral; a facilitator, not a decision maker; and does not advise, evaluate or advocate for any particular resolution. Mediation gives the parties involved the ability to determine the outcome and resolution of their issues. The mediation process is simple, but can have a profound effect on the outcome of a dispute. Both parties share their concerns without interruption. The mediator may then ask questions for clarification and will develop a problem statement to summarize the issues to be addressed during the mediation. At some point, the mediator may meet privately with one or both of the parties and anything discussed privately cannot be shared unless agreed upon by the party and the mediator. Typically, the parties then brainstorm together to develop solutions for their issues. If an agreement is reached, a written resolution is developed which is final and binding when signed by both parties. As stated by the American College of Physician Executives (ACPE) and American Organization of Nurse Executives (AONE), “Disruptive behavior in a health care setting can lead to an unsafe environment for patients.” Mediation can be an effective tool to resolving conflict to enhance patient safety and improve the future working relationship of the parties involved.

As reported this week by the Workplace Prof Blog, a U.S. District Court in Colorado has issued a decision involving arbitration of statutory claims within the context of a collective bargaining agreement. The case is Mathews v. Denver Newspaper Agency, LLP, 2009 WL 1231776 (D. Colo. 2009). Professor Richard Bales’ analysis of the decision is here: First Post-Pyett Case. Previous Coverage: U.S. Supreme Court Enforces Agreement to Arbitrate Discrimination Claims (April 3, 2009) 14 Penn Plaza v. Pyett: Conflicts of Interest (April 6, 2009) Related Posts: Pyett Analysis – Unions Can Waive But what is Clear and Unmistakable?, Sarah Cole, ADR Prof Blog, April 3, 2009. Supreme Court’s Decision in Pyett Collective Bargaining Case Will Have Little Real World Effect, George Lenard, JURIST- Hotline, April 5, 2009. Some Interesting Questions Raised by the Pyett Decision, Philip J. Loree Jr., Loree Reinsurance and Arbitration Law Forum, April 7, 2009. Technorati Tags: arbitration, ADR, law, U.S. Supreme Court, ADE waiver, Age Discrimination in Employment Act of 1967, National Labor Relations Act of 1935, 14 Penn Plaza LLC v. Pyett