New Jersey Healthcare ADR Lawyer & Attorney : Healthcare Neutral : Richard Webb : New York Metropolitan Area

          The current issue of in Re: Magazine, the special supplement to the weekly newspaper, New Jersey Lawyer, is dedicated to healthcare law and is online now.

          In addition to an article by yours truly entitled Alternative Dispute Resolution In The Healthcare Industry, topics covered include:

- Nuances Of Purchasing  A Medical Practice, by Peter A. Greenbaum;

- The Next Wave Of Healthcare Fraud Enforcement In New Jersey, by Mark S. Olinsky and Gary W. Herschman;

- Answering Malpractice Insurance Questionnaires, by Christopher R. Barbrack;

- Medicaid Beneficiaries' Rights Not To be Evicted From Nursing Homes, by William P. Isele; and,

- New IRS Form 990 And Transparency For Nonprofit Boards, by Todd C. Brower and Isai Senthil.

[Image: Newspaper Rock, by Jon Sullivan, February 15, 2004]

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          Concluding my original report on the highlights of the ABA Section of Dispute Resolution Spring Conference in Seattle, I attended several break out sessions which focused on what consumers of ADR services really want from their neutrals.  One of these was a presentation on the Findings on Mediation Quality from the ABA Section of Dispute Resolution Task Force on Improving the Quality of Mediation (H7), given by four members of that Task Force (Kathleen A. Bryan, Leila Taaffe, Wayne Thorpe and Rachel Wohl).

          The entire Report is worth reading - both for mediators and those who use mediators - but the panel focused on the key findings about what consumers of mediation really want and view as "high quality" in mediation:

- Preparation.  The panel emphasized that this included not only that the mediator review and understand the available materials, but that the mediator do whatever is possible to assure that counsel and the parties are prepared as well - that is, that everyone starts "on the same page."

- Customization of the mediation process.  The panel mentioned the importance of pre-mediation communication with counsel to determine what they expect, and what they believe will be useful in the process - for example, whether the parties will benefit from joint sessions and opening statements.  Logistical matters involving time, length and scope of sessions, as well as presence and participation of parties were also seen as important items for the mediator to nail down.

- Analytical assistance from the mediator.  The parties and counsel want the mediator to help  resolve the case by fairly assisting them to analyze how their case will be viewed by a judge or jury, but, according to the panel, they don't want their mediator to tell them "this is what will happen."  They also value creative suggestions, and welcome the mediator's perspective when based on subject matter expertise.

- Persistence by the mediator.  Counsel surveyed for the Report consistently valued and gave high marks for a mediator's persistence - having a manifest commitment to getting the conflict resolved at all stages of the mediation.  The panel noted the importance of mediator follow-up, whether the mediation resulted in settlement or not.

         
         [Image: Pike Place Market (Seattle) greengrocer vegetable display, by Rootology, 5-30-08]

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          The American Health Lawyers Association's ADR Service will hold a one day Arbitration Training Session on June 29, 2008 at the San Francisco Marriott Hotel in San Francisco, California.  The session will be held on the day prior to commencement of  the AHLA's Annual Meeting & In-House Counsel Program, although registration for that meeting is not required to attend the Arbitration Training Session.
         
          This training session will be taught by Jerry P. Roscoe, who always does a fine job in covering a lot of ground in an engaging way.  I started my ADR training with AHLA sessions, and found them to be well worth the cost.  For those interested in joining the AHLA's Roster of Dispute Resolvers, this is a great place to begin.

          For a detailed schedule of the training session and to register online, access the AHLA's website.

[Image: San Francisco Cable Car by Thomas Bachmann, July 15, 2004]

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           [Image: Older Sorry! board game, by myguitarzz, June 5, 2006]
   

          Last month's 10th Annual ABA Section of Dispute Resolution Spring Conference in Seattle offered at least two break-outs sessions on the use of apologies in mediation, one of which focused on adverse healthcare outcomes.  "Breakthroughs, Benefits and Backfires of Apology in Litigation," presented by Karen S. Fasler, Debra Gerardi, Dale Hetzler and Darrell L. Puls, examined research and anecdotal evidence on the use of apologies by healthcare providers following unintended treatment events.  Their presentation was fascinating and compelling.  I have since read from other sources which appear to support their conclusions.  In short, they offered that:

1. Following adverse outcomes, patients and families want most to understand what happened, and will react with anger to any effort to hide or deny the truth.

2. Sincere expressions of compassion, before fault is determined, and without any admission of error (e.g., "I am sorry for your loss," or "I am sorry that this happened to you"), are almost always appropriate and effective in minimizing the potential for legal claims by the patient or family.

3. If it is determined that the adverse outcome resulted from a provider's negligence, a sincere and complete apology will benefit the patient, the family and the provider; and if accompanied by other appropriate measures, will actually minimize the provider's likely malpractice exposure.  As articulated by Darrell Puls in his conference paper, a successful apology includes an admission of responsibility, an expression of remorse, reassurance of a commitment not to make the same error again, and an offer of appropriate restitution.

4. Where provider fault exists, an offer of a less than sincere and complete apology will do more harm than good (e.g., "I apologize for any alleged malpractice").

          Writing in the current (May) issue of the American Health Lawyers News (members only, print volume 12, number 5), Lee Taft analyzes some of the challenges to providers and their lawyers associated with making disclosures and offering apologies following adverse outcomes.  He amplifies the conclusions stated above, and then identifies some of the pitfalls that accompany even the most well intended efforts by providers to reconcile with  patients  who have been harmed.   Most notably, he  points out the difficulty faced by providers in offering information and apologies without jeopardizing their legal defense and insurance coverage, particularly when there are multiple providers and insurers involved.

          Some have suggested that this problem can be addressed by statute.  More than half the states have enacted some form of legislation restricting the admission into evidence of statements of apology offered by healthcare providers under certain circumstances.  As reported by New Jersey Lawyer, many plaintiffs' attorneys in states (like New Jersey) without such legislation believe such laws offer defendants an unfair advantage - essentially that healthcare providers are free to apologize whenever they choose if they believe it is appropriate, and their statements should be admissible on the same basis as those of any other defendant.

          The "apology and disclosure movement," represented by organizations such as "Sorry Works!", seeks to promote the use of programs like the one Lee Taft describes at Stanford University, or the joint physician-lawyer mediation program launched in Pennsylvania by the Montgomery County Bar Association and Medical Society along with Abington Memorial Hospital recently reported by The Philadelphia Inquirer.  These programs rely upon a careful, stepwise approach to communications with patients and families following an adverse outcome.  An important aspect of all such programs is the potential for mediation of remaining issues after full disclosure is made. 

          Whether or not a healthcare provider's apology is protected by statute from admission as evidence of malpractice, that result can always be achieved by offering the apology in the course of a mediation in which confidentiality is preserved, either by agreement of the parties, or by rule of court.

          The "best practice" that appears to be emerging from research and experience around the country requires healthcare providers to participate in a  structured approach to communications with patients and their families following adverse outcomes that includes:

- A statement of compassion and support from those involved immediately following the adverse outcome;

- Disclosure of reliable information as soon as possible, and follow up to include the patient and family;

- If the result is determined to be a result of provider negligence, a sincere and complete apology (as described above) offered in a context that will permit the providers involved to speak freely (i.e., in the course of a mediated resolution or under statutory protection), including an assurance that the error will not be repeated, and a just financial settlement;

- If the result is determined not to be the result of provider negligence, a vigorous but compassionate defense.

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          [Image: a conductor's bag with a money changer, by LosHawlos, June 17, 2005]

          Most mediators are attracted to the field by a belief in the effectiveness of interest based negotiation and the power that it holds for resolving disputes through mediation.  As most clearly articulated by Roger Fisher and William Ury in Getting To Yes, and embodied in our modern business lexicon as the "win-win solution,"  the search for resolutions that creatively address the parties' true interests is the essence of today's mediation training and practice.  It is thus with great reluctance that many mediators confront and respond to the notion that some disputes really are about money, and nothing but money.

          Attorney and mediator J. Anderson ("Andy") Little, author of the book Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes, urges mediators not to cringe at the thought of mediating a purely monetary dispute.  As he sees it, mediators who limit their role in such cases to that of a messenger between the parties are selling themselves short, and doing the parties a disservice.  Having read Mr. Little's book, I was even more persuaded by his presentation at the ABA Section of Dispute Resolution Spring Conference in Seattle entitled "Negotiating By The Numbers." 

          Before getting into what mediators can do in such cases, let me say that  Mr. Little does not accept the premise of many attorneys coming into mediation that every case is only about money.  Although I hear this from one of the attorneys at some point in almost every mediation, it is not usually true.  In most healthcare disputes that are ripe for mediation, the parties have interests at stake other than money, or which cannot easily be reduced to a specific dollar demand.  It usually takes some time and effort to uncover or get the parties to value their non-monetary interests, but they are there nonetheless.

          Assuming the parties really have no interest at stake other than how much money one of them will have to push across the table to the other, the mediator can still play a vital role in the process.  Making Money Talk explains these concepts much more fully and eloquently, but as a mediator, my "take aways" from Mr. Little's presentation were as follows:

1- If you have a "money only" case, embrace your role, and work as hard at the mediation process as you would in the most complex interest-based scenario.

2- Be prepared to use "reality testing" and other "evaluative" techniques to help each party and their counsel to get on the same page, and to enable the formulation of effective offers and counter-offers.

3- Be aware of the effect that particular monetary offers and counter-offers can have on the negotiation process, and coach the parties to formulate and time their offers to send the signals that they really intend the other party to receive.

4- Every "money only" mediation has two parts, the first to get the parties to their "best numbers,"  and the second to close the distance between their "best numbers."  How well the mediator performs tasks 1, 2 and 3 above will determine whether and when the parties get to the point that they need only close the final gap.

          Andy Little's ideas filled a void in my mediator's toolbox.  It caused me to rethink the "money only" case.  Ironically, I also realized that when used in combination with more traditional mediation concepts, the art of helping to move money across the table can help settle almost any case.

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         [Image: View of downtown Seattle from Kerry Park, with Mt. Rainier in the background, by U.S. Geological Survey, October 16, 2005]

         Two weeks ago, I attended the 10th Annual ABA Section of Dispute Resolution Spring Conference in Seattle.  Having dug out from the tasks accumulated during my time away, and with the benefit of some time for reflection, I now turn to writing about a few of the topics covered in some of the break-out sessions I attended at the conference.  On the whole, the conference was excellent, and I have already touched upon some topics (Hall Street, med-arb) that were addressed there is great detail.  In posts to follow, I will share what I learned about:

- mediating cases in which the only issue is money;

- the use of apologies in helping to resolve disputes arising from adverse healthcare outcomes; and,

- what frequent consumers of ADR want and consider to be quality when selecting their neutrals.

          Aside from the sessions discussing these topics and others, the conference offered an opportunity to meet and talk with interesting people from around the country (and beyond) who share a belief in the value of alternative dispute resolution, and who seek to improve the way in which they advance the cause.  For anyone who is serious about ADR, I highly recommend it.

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          [Image: Top view of the two-headed Boa Island Janus figure, County Fermanagh, Northern Ireland, by Kenneth Allen, May 22, 2006]

          Last night I attended a joint meeting of the New Jersey State Bar Association's Dispute Resolution Section and the New Jersey Association of Professional Mediators, at which a presentation and discussion took place concerning the dispute resolution process in which the neutral serves as both a mediator and an arbitrator in the same case - commonly referred to as "med-arb" or "arb-med," depending on the primary process for which the neutral is engaged.  The speakers, Patrick Westerkamp and Sally Steinberg-Brent, entitled their presentation "Mediation and Arbitration, Like Oil and Water?"  They approached the topic in the context of labor arbitrations, including an interesting historical review, and offered examples of how an experienced and trusted labor arbitrator could utilize mediation techniques to settle certain cases with the parties' consent.

          Against this backdrop, the diverse audience of ADR providers in attendance jumped in with spirited discussion of how and why med-arb could (or could never) work in their practices.  Among the strongest objections to the concept were voiced by the family law mediators in attendance, who saw the judgmental role of arbitrator as antithetical to their mediation practices.  Others focused on some practical problems with med-arb: How does the arbitrator maintain objectivity and neutrality after hearing confidential information from the parties in mediation?  What happens if mediation settles some but not all of the issues, and the remaining issues cannot be fairly arbitrated without reopening the settlement?  Are med-arb and arb-med permitted by applicable statutes, codes of ethics and rules of practice?  Time ran out before these issues could be fully explored, but a consensus seemed to emerge that med-arb can be a very helpful tool if used carefully and in appropriate circumstances. 

          In my view, for purposes of resolving common business disputes arising in the healthcare industry, the greatest utility exists in a process that might more accurately be described by the oxymoronic term "binding mediation."  Specifically, after making considerable progress but reaching an impasse, a mediator can, at the request of the parties, offer a "mediator's proposal."  The object of such a proposal is to state the mediator's sense of a fair allocation of the remaining ground between the parties, and not an opinion of how the entire conflict would be resolved in court.  The parties are then presented with this proposal in separate sessions and asked to accept or reject it.  Only if both parties accept it does the mediator reveal their decisions and settle the case.  Otherwise, the mediation is concluded without settlement.

          "Binding mediation" takes this process one step further.  At the point where the parties request a "mediator's proposal,"  they also may agree that they will accept the mediator's proposal as a binding decision.  Again, the mediator does not then offer an arbitral award in the traditional sense, but a solution that equitably resolves the remaining issues in the case, taking into account the prior course of negotiation and scope of available solutions at the time of impasse.  This is, I think, the kind of "med-arb" that  parties at impasse may want from a mediator in whom they have confidence when they cannot bear to leave the mediation without settlement.

          Among other things I learned from many of the courses and discussions I participated in at last week's annual meeting of the ABA Dispute Resolution Section in Seattle, the future of ADR lies in tailoring the process to suit the needs of the parties.  Call it "med-arb," "binding mediation" or something else, it is here to stay.

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 [Image:  A supreme pizza with pepperoni, peppers, olives and mushrooms, by Scott Bauer, USDA]

          Last week, the U. S. Supreme Court decided the much anticipated arbitration case, Hall Street Associates, L.L.C. v. Mattel, Inc., which I first wrote about when it was argued last November.  The question faced by the Court in Hall Street was whether the parties to a dispute governed by the Federal Arbitration Act ("FAA") could, by agreement, provide for more expansive judicial review of the arbitrator's award than the narrow grounds stated in the FAA.  In particular, the case involved an agreement that the federal district court could vacate, modify or correct the arbitrator's award to correct legal or factual error.  The FAA permits an award to be vacated or modified only when it is in excess of the arbitrator's authority, or when it results from fraud or arbitrator misconduct.

          By a 6-3 vote, the Court held that the statutory grounds for vacating or modifying an arbitration award under the FAA are exclusive, and not subject to expansion by agreement of the parties.  The Court thereby resolved a conflict among the circuit courts, and upheld the more "traditional" view of arbitration argued by many, including the American Arbitration Association ("AAA").  This was a good result.  It preserved the essence of the arbitration process under the FAA that makes it an attractive alternative to courtroom litigation.

          But the Court did not slam the lid on all future use of  "enhanced arbitration."  Arbitrations not governed by the FAA may or may not permit the parties to agree upon heightened judicial review, depending on the arbitration statute or rule involved.  Even under the FAA, as noted by the National Arbitration Forum ("NAF"), the possibility remains that parties could expressly agree to require the arbitrator to apply the substantive law governing their underlying dispute.  Thus, the losing party could attempt to challenge the arbitrator's award in court on the grounds that the arbitrator failed to "follow the law," and thereby acted "in excess of the arbitrator's authority."  The distinction between the parties' agreement that (a) the arbitrator's award will be subject to "enhanced judicial review" (a result not allowed under Hall Street) and (b) the arbitrator's award can be vacated for "exceeding the arbitrator's authority" if the arbitrator did not follow the law, is a subtle one, to say the least.  For  a fuller explanation of this theory, see Judge Posner's opinion in a case cited by the NAF, Edstrom Industries, Inc. v. Companion Life Insurance Co., 516 F.3d 546, 550 (7th Cir. 2008).

          What does this mean for the healthcare lawyer and client considering the use of an arbitration agreement?  If you like the idea of "traditional" arbitration, with the scope of discretion, speed and finality that it offers, make your case subject to the FAA and select an arbitrator using rules that are consistent with your expectations.

          If you are not comfortable with that scope of arbitral authority, you could attempt to get your case outside the FAA, expressly require the arbitrator to strictly adhere to the applicable substantive law, and require the arbitrator to issue a reasoned award (including findings of fact and conclusions of law).  Procedural rule 20 D of the NAF provides that an arbitrator "shall follow the applicable substantive law."  This approach may or may not get you the judicial review you want, but it maintains that possibility, and holds the arbitrator to a tighter standard.  It also may slow the process and undercut the finality that traditional arbitration offers.

          Finally, if you can't live without absolute certainty that your case will be reviewed on the merits by a sitting judge, just skip arbitration and go directly to court.  You really didn't want to arbitrate anyway.
 
          The beauty of the Hall Street decision is that it leaves parties with this choice.  You just can't have them all.

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          [Image: World Wrestling Entertainment (WWE) superstar Rikishi performs for the troops at Camp Victory, Baghdad, Iraq, December 20, 2003, by TSGT Lias M. Zunzanyika, USAF]

          Until very recently, I viewed the annual announcement of New Jersey's Super Lawyers with considerable skepticism.  Having practiced law for nearly 30 years with my fair share of success and professional achievement, it seemed to me that any such list that didn't include my name had to be faulty.  All of that changed this week when I was named a New Jersey Super Lawyer in the Health Care category (also published in the April print edition of New Jersey Monthly magazine).  Clearly, the folks over at Super Lawyers have finally gotten the kinks out of the selection process. 

          I don't know what made me a Super Lawyer this year, or why some terrific healthcare lawyers I know have yet to make the list.  But I confess that I'd rather be on the list than not.  I wish I could say that I didn't care, but I do, if only a little.  I also admit that I will buy the plaque commemorating this event.  After all, the selection process may never again be as well-conceived, fairly applied and thorough as it was this year - I will let you know.

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