Professor David Horton, University of California, Davis, School of Law, has published “Clause Construction: A Glimpse into Judicial and Arbitral Decision-Making,” Duke Law Journal, Vol. 68, Forthcoming. 

The Supreme Court of Texas has agreed to consider whether a crop insurance dispute was properly submitted to arbitration.

The Supreme Court of Texas has ruled that a payday lender did not waive its right to compel arbitration against the company’s defaulting customers. 

The Texas Attorney General has reportedly joined a bipartisan group comprised of representatives from 56 states and U.S. territories in a call for federal legislation that would prohibit employers from requiring victims of workplace sexual harassment to engage in mandatory arbitration.

By Holly Hayes Our health care conflict resolution series began with Part I, applying the “principled negotiation” method to health care (post available here) and followed with Part II, examining a case study of “Separating the People from the Problem” (post available here). In this post, let’s take an example of a physician and a hospital group negotiating to buy the physician’s practice to see how “positional bargaining” results in failure to find a solution. Physician: I need you to buy my practice for $X and I will not take weekend call. If you don’t want to buy my practice, my partners and I can take it down the road to hospital Y. Hospital Representative: We are willing to offer you $Z for your practice and we must have a weekend call rotation as part of the deal. Physician: You don’t care about me or my practice, this discussion is over. Wise solutions acknowledge interests, not positions. The basic problem with the physician and the hospital representative is not that one is buying and one is selling, the conflict is between their interests or their concerns, fears, needs and desires related to the negotiation. What are some tools to help reconcile interests rather than merely seeking to compromise positions? In Getting to Yes, Roger Fisher and William Ury describe techniques for identifying interests so that options can be developed that meet both party’s interests. Ask “Why?” – put yourself in their shoes. Ask “Why Not?” — why doesn’t the other side agree with us? Realize each side has multiple interests – the physician wants a secure income for his family, he wants time with his family so he does not want to always be on call. Realize the most powerful interests are basic human needs – security, economic well-being, control over one’s life, a sense of belonging, recognition. Talk about interests – make your interests come alive for the other side. The hospital representative can talk about ways to include the physician in decision-making at the hospital and about what the hospital needs in terms of income to make a profit to reinvest in its people and physical plant. Using these techniques, let’s see how the conversation between the physician and the hospital representative is more productive: Physician: I need you to buy my practice for $X and I will not take weekend call. If you don’t want to buy my practice, my partners and I can take it down the road to hospital Y. Hospital Representative: I understand you have spent your time and your own income to build such a successful practice. You have been a great partner for us for five years. Can you help me understand how you arrived at the $X figure and talk a little about the call issue? Physician: We recently bought an MRI and quite a bit of other costly equipment that would be included in the purchase price. I have spoken with some other physician practices and this price seems fair. I just want to be fairly compensated for the value my partners and I have brought to this practice over the past five years. In terms of call, I want time with my family on the weekends. I am afraid that if one of my partners leaves, I will have to take both my call and their call and who knows when a new physician could be recruited. I want control over my life. Hospital Rep: Would it be alright with you if we had both your accountant and my CFO take a look at the practice financials? There are also some industry standards we could apply to the purchase price. As for call, you make a very good point about how much call would be needed. Of course, my problem is that I need to provide certain coverage or the hospital cannot provide certain services and those patients will go down the road. This is a problem across the country and I know many hospitals have begun to pay very high prices to provide call for certain specialties. I wonder if you would consider being part of our medical staff executive committee as part of a purchase package? This would not guarantee you no call, but it would give you a chance to help make policy about how we move forward. If we can reach agreement on purchasing your practice, it will take both of us to make the best decisions for a successful partnership. Physician: Yes, I can agree to those next steps. I am starting to feel a level of comfort that I will be treated fairly. As the two parties talked about their interests by asking questions and realizing that the most powerful interests are basic human needs, they both came closer to the purpose of negotiating — serving their interests and finding an acceptable solution. Part IV in our series will explore more on this topic – “how to invent options for mutual gain”. We welcome any comments you have about conflict you have experienced in health care and lessons you have learned. 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 Last week, we started our health care conflict resolution series with applying the principled negotiation method to health care (post available here). Principled negotiation involves: Separating the people from the problem. Focusing on interests, not positions. Generating a variety of possibilities before deciding what to do. Insisting that the result be based on some objective standard. This post will focus on “separating the people from the problem”. Here is an example of a healthcare conflict where the parties misunderstood each other, got angry and upset and started taking things personally: Radiology Director: Technician X, I have a patient complaint here that says it took over an hour for a basic scan to be performed last week. What were you doing that caused such a delay? Technician X: Which day, which patient? What were the details? Radiology Director: That doesn’t matter, what matters is that now we have a complaint against our department. Our reputation as a department and as a patient-friendly hospital is on the line. I’m going to have to put this complaint in your file. Now, what happened? Technician X: I guess it doesn’t matter, what matters is the complaint. I’ll try to see that it doesn’t happen again. Radiology Director: You do that. Another complaint like this and we’ll have to come up with a disciplinary action plan. What happened? The problem, “we cannot have complaints like this” became a personal attack on Technician X. If we can separate the people from the problem, we can maintain a good working relationship and successfully address the problem. In Getting to YES, Roger Fisher and William Ury outline three categories to think about in terms of dealing with people: perceptions, emotions and communication. Perceptions: In our example, the parties did not “put themselves in the other person’s shoes”. Had the Radiology Director listened to and responded to Technician X when he asked for the details, she might have gained a better understanding of the technician’s perception of the problem and why it happened. Understanding Technician X’s point of view would have allowed the Director to proceed with new information to solve the actual problem of a delay of service. Emotions: The Director did not recognize or explain her own emotions and why she was worried about the complaint. She also did not have any idea about how the technician felt about the complaint. When parties are freed from the burden of unexpressed emotions they can more likely work on the problem. Communication: In our scenario, the Director did not listen actively and acknowledge the technician as a human being with potentially useful information to address the problem. Let’s change the situation to separate the people from the problem using the techniques described above: Radiology Director: Technician X, I have a patient complaint here that says it took over an hour for a basic scan to be performed last week. Can you tell me more about what happened with Patient Y on Date Z? Technician X: I remember that patient and that incident. That was the day our CT scanner broke and we didn’t have a spare part, so we had to schedule all of the patients on one machine. We tried to explain the problem to all of the patients, but the waiting time was much longer than the departmental goals we have set for ourselves. I felt really bad about Patient Y because she was next in line when the scanner broke and her wait was the longest. Radiology Director: It is upsetting to me when we have a complaint because I have to respond to the CEO about what happened. You have given me some good information though. Do we need to work with our Physical Plant Maintenance Department and come up with a better system to keep spare parts on hand? Technician X: I was really upset about the delay, too. I would be happy to schedule a meeting with the Plant Department and come up with a better system. Technician A has experience in this area from another facility, could she work with me and we can bring you some recommendations to consider in the next two weeks? Radiology Director: Yes, please work with Technician A and the Physical Plant Department. Maybe we can turn this negative complaint into a positive by making sure it doesn’t happen again. I feel so much better now about communicating our plan of action to the CEO. When the Radiology Director dealt with Technician X as a human being and dealt with the problem on its own merits, she was able to maintain a good working relationship while successfully addressing the problem. Look for the next post in our series where we will discuss focusing on interests, not positions in the health care setting. We welcome any comments on this post and any suggestions for upcoming posts in this series. 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.