The United States Court of Appeals for the Third Circuit has deepened a circuit split regarding whether a securities brokerage may deny clients access to the Financial Industry Regulatory Authority (“FINRA”) arbitral forum using a forum-selection clause.

The United States Court of Appeals for the Fifth Circuit has held an arbitrator exceeded his authority when he reformed a multi-million dollar contract between two companies.

A Houston appeals court has ruled that the administrator of an estate is not bound by an arbitration clause that was contained in a will.

Imre S. Szalai, Judge John D. Wessel Distinguished Professor in Social Justice at Loyola University New Orleans College of Law, has published “A New Legal Framework for Employee and Consumer Arbitration Agreements,” 19 Cardozo J. Conflict Resol. 653 (2018); Loyola University New Orleans College of Law Research Paper No. 2018-09. 

We would like to welcome the Franklin Solutions Blog to the ADR blogosphere. The blog is hosted by Jeanne F. Franklin, a certified mediator and lawyer from Virginia. The Franklin Solutions Blog has a focus on health care mediation and conflict resolution. Check out their June 1 post here. We look forward to reading more of your posts, Jeanne. The Disputing Team, Karl Bayer, Alyson Chaky, Holly Hayes & Victoria VanBuren

By Holly Hayes How big is the issue of conflict in healthcare? The accrediting body for hospitals, The Joint Commission, issued standard (LD.01.03.01) in January 2009 recognizing the need to better manage conflict in the healthcare setting. The Standard states: “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” During on-site accreditation visits, The Joint Commission reviewers “score” the Standard by reviewing the hospital’s code of conduct which defines acceptable, disruptive, and inappropriate behaviors; and by examining the hospital’s process for managing disruptive and inappropriate behaviors. The need to manage conflict in the healthcare setting is not new. Much has been written about disruptive behaviors creating breakdowns in the teamwork, collaboration and communication needed to deliver high quality patient care. A study by The Institute for Safe Medication Practices (ISMP) found that forty percent of clinicians have remained passive or kept quiet during patient care events rather than confront a known intimidator. A survey conducted by the American College of Physician Executives (ACPE) published in November 2009 indicates 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. In this time of rising healthcare costs, hospitals who fail to address disruptive behavior face staff turnover issues that can cost up to 1.5 to 1.8 times the amount in salary dollars to hire and train a skilled nurse. A December 2009 article in Trustee magazine stated nurses consider disruptive behavior to be the most important factor influencing their morale and job satisfaction. In one survey, as many as thirty-one percent of nurses knew of at least one of their nurse colleagues who left a hospital because of disruptive behavior. Most important is the effect on patient safety and the quality of care. The ISMP survey found that nearly fifty percent of clinicians felt pressured to administer or dispense a drug even though they had serious concerns about its safety. Forty percent were too intimated to question medication orders given by a clinician with a reputation for abusive behavior. Another survey stated that seventeen percent of hospital staff believed disruptive behavior had been the cause of an adverse event. Safety issues arise when something negative has occurred or because something positive hasn’t been done. In each case, it requires trust for staff or patients to report the issue. How does a hospital create a culture of trust and healthy communication? A spectrum of healthcare conflict resolution might begin with actions to Prevent an incident from occurring. Hospitals typically put in place policies, training, monitoring and accountability as well as a code of conduct to prevent disruptive behavior and promote acceptable behaviors. In an effort to prevent 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. If an incident of disruptive behavior occurs, the hospital must then Respond. Hospitals may be organized around a Department of Performance Improvement (PI), a Department of Quality or a Department of Risk Management or a combination of two or more to respond to conflict and manage the resolution process. To respond to conflict, The Joint Commission recommends hospitals: 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. The final step in the spectrum of healthcare conflict management is to Measure Performance to pro-actively focus on areas of greatest need. Hospitals can review data sources including: patient satisfaction surveys, patient complaint data, staff satisfaction surveys, exit interviews, physician satisfaction surveys, incident reports, culture of safety surveys and lawsuits to focus efforts to prevent conflict from arising. Where does mediation fit in a process for conflict management? If a possible spectrum of conflict resolution in healthcare begins with actions to Prevent conflict, implements a process to Respond to conflicts that do occur and finally Measures Performance over time to identify areas for improvement, where does mediation fit? Mediation skills can be pro-actively taught to all hospital staff to prevent conflict. Mediation skills can be implemented as a tool to decrease escalation of a dispute. Outside mediators or internal staff can conduct mediations as a non-confrontational strategy to address disruptive behaviors, improve the working relationships of the parties involved and enhance teamwork and patient safety. Physician and nurse executive respondents to the ACEP survey were asked to give solutions to decrease disruptive behavior. They listed: setting clear expectations, implementing consistent enforcement and focusing on teamwork. Training staff in mediation skills can help set expectations of and provide tools for appropriate behavior. An outside, neutral mediator can be hired or contracted on a contingency/as-needed basis or internal staff can be trained in mediation techniques to be part of a process to implement consistent enforcement of appropriate behavior. By its nature, mediation has a critical place in healthcare as organizations focus on increasing patient safety by building relationships and enhancing trust and teamwork among caregivers. [Ed. note: the contents of this post appeared first in Texas Mediator, Volume 24, Number 3, Spring 2010.] 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. […]