S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, Senior Fellow at the Center for the Study of Dispute Resolution, and Adjunct Professor at Georgetown University Law Center, has published “Arbitration of Internal Trust Disputes: The Next Frontier for International Commercial Arbitration?,” To be published in final form in ICCA Congress Series No. 20, “Evolution and Adaptation: The Future of International Arbitration” (Wolters Kluwer, 2019 Forthcoming); University of Missouri School of Law Legal Studies Research Paper No. 2018-14. 

The United States Supreme Court has granted certiorari in a case involving the arbitrability of independent contractor agreements. 

The Fifth Circuit Court of Appeals has ruled in an unpublished opinion that a physician waived his right to arbitration by substantially invoking “the judicial process to the detriment or prejudice of the other party.”

A representative for Donald Trump reportedly won an arbitration proceeding against an adult-film star just days before she filed a lawsuit against Trump in a California trial court.

By Holly Hayes The New York Times posted last week an interview with Dr. Howard Brody (pictured left), professor of family medicine and director of the Institute for the Medical Humanities at the University of Texas Medical Branch in Galveston, discussing a proposal for health care reform involving physicians. Physicians, Dr. Brody says, are not “innocent bystanders” to increasing health care costs but have made little effort to limit future medical costs. In an editorial in The New England Journal of Medicine, he writes “If physicians seized the moral high ground, we just might astonish enough other people to change the entire reform debate for the better.” The New York Times spoke with Dr. Brody about his “Top Five” solution: Q. You write that doctors have an ethical responsibility to advocate health care reform. Why? A. Doctors have two responsibilities. First, they have a moral duty as an individual advocate. A doctor has a responsibility to his or her individual patients to make them healthier and to help them live longer. But doctors have a second moral duty: they have an obligation to the general public to be prudent stewards of scarce resources. Doctors only get about 10 percent of health care costs in their pockets, but they control about 80 percent. That isn’t our money — it’s someone else’s — and the public has entrusted us to spend it as wisely as possible. Q. How does your “Top Five” solution work? A. The basic idea is that each specialty would decide on the top five procedures or diagnostic studies that are done commonly but only really help a small fraction of patients. These are things like arthroscopy for osteoarthritis of the knee or MRI’s and CAT scans, all of which are massively overused, not because they help but because of our enthusiasm regarding high technology. Once each specialty has gone through the research evidence and decided on its “Top Five,” the respective professional organizations would take a public stand, issuing guidelines and recommendations against overuse of those “Top Five” procedures or studies. By taking a public stand and making it harder for individual doctors to say, “Oh, I know better,” we could build real momentum for cost containment. And we would ultimately all benefit because we don’t need all that technology. You can still be as healthy without it. A physician-led effort to determine guidelines and recommendations against overuse of the “Top Five” procedures or studies could have a tremendous impact on curtailing future medical costs. We suggest that the process outlined by Dr. Brody could benefit from applying conflict resolution techniques. For example, we recently posted a Four-step Approach to Problem-solving used by the program for Health Care Negotiation and Conflict Resolution at Harvard. This approach could be applied to the “Top Five” process: A Four-step Approach to Problem-solving Four negotiation steps developed by the Program for Health Care Negotiation and Conflict Resolution guide minor and major negotiations in health care. The structured multidimensional problem-solving process is called “Walk in the Woods,” after a famous story in which international negotiators at loggerheads over a nuclear arms treaty went for a walk in the woods near Geneva and discovered common interests that led to new solutions. Step one: self interests. Each participant articulates his or her view of key problems, issues, and options. They are encouraged to actively listen, question, and interact with one another. Step two: enlarged interests. The participants reframe their understanding of current problems and possible options with a wider perspective, based on the integrative listening and confidence-building that occurred in step one. Step three: enlightened interests. The group is ready to engage in innovative thinking and problem-solving, generating ideas and perspectives that had not previously been considered. Step four: aligned interests. Participants build common ground perspectives, priorities, action items, agreement, or plans for moving forward. Depending on the scope of the intended objectives, at this point they recognize the tangible contributions and opportunities accomplished through the meeting. We invite your comments 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.

By Holly Hayes Conflict in health care differs from conflict in other arenas because it can result in significant negative outcomes – in some cases, life or death. Part IV in our series on applying conflict resolution skills in the health care setting follows the Principled Negotiation techniques described by Roger Fisher and William Ury in Getting to Yes with a focus on “inventing options for mutual gain”. Part I in the series can be viewed (here), Part II, (here) and Part III (here). Why do we want to take the time to invent options when we disagree? Often conflict appears to have only one solution – split the pie in half — and people usually believe they know the correct answer – their answer is the right answer. Four major obstacles typically inhibit the invention of more than one option for consideration in a negotiation: Premature judgment Searching for a single answer The assumption of a fixed pie Thinking that solving the problem is “the other party’s problem” We can imagine a typical health care conflict between the Emergency Department (ED) Manager and the Manager of Environmental Services (Housekeeping) in a hospital could look like this: Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. I need your staff to take over all of the cleaning in the department. We have to take care of the sickest, most urgent patients in the hospital. Manager of Environmental Services: Well, I understand you are busy, but my department hasn’t added any new staff, why do you think we could pick up the slack for your staff? ED Manager: Well, let’s just split the jobs then, you do half of the work and we will do our best to do the other half of the cleaning. Manager of Environmental Services: I guess we can try to make that work. The managers did not “expand the pie” before dividing it – they did not invent options for mutual gain before reaching a solution. Let’s look at some other approaches where the managers take the time to invent creative options: Separate the act of developing options from the act of judging the options – brainstorming is a fairly common exercise where parties produce as many ideas as possible without considering their merit until a complete list is made. Broaden the options rather than looking for a single answer – one example of this is to invent options of different strengths, some weaker options, some stronger options for consideration; another example is to look through the eyes of someone else, for example, look at the problem through the eyes of the patient or a family member, what options would they suggest? Search for options that present opportunity for mutual gain – the secret here is to look for joint gain rather than a winner and a loser by identifying shared interests or dovetailing differing interests. Invent ways to make decisions easy for the other party – a painless choice for the other side that advances your interests is a win-win for both parties. Let’s try the conversation with the two department managers applying the techniques above. Emergency Department (ED) Manager: I am glad you agreed to talk with me about the housekeeping problem we have had in the ED. I think you know that I am short staffed right now and my staff cannot keep up with the minor cleaning after a patient discharge we have been doing up to now. We have to take care of the sickest, most urgent patients in the hospital. What do you suggest? Manager of Environmental Services: That is a problem. I wonder if our departments could split the cost of a temporary staff member to help in the short-term? Emergency Department (ED) Manager: That’s a thought. What if we spent some time streamlining the cleaning process to make the best use of the staff’s time. Your department must have a lot of ideas you could share with us. Manager of Environmental Services: We do have some ideas that have worked in other departments that could be applied here as well. Let’s form a group of your staff and my staff to look at how we can work together to solve the problem. By working together, the two managers invented options that will likely result in even more options for consideration that will benefit the departments, the hospital and ultimately the patients. The key is taking time to explore those options for mutual gain that advance the interests of both parties. We welcome your comments and invite you to share other examples of conflict in health care. 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.