Richard J. Webb
Articles and Video:
Ken Feinberg is probably America's most well-known neutral - an attorney, mediator and special master in administering mega-settlements such as those formed to compensate the victims of the 9/11 attacks, the Virginia Tech massacre and the BP Gulf Coast oil spill. Although some might say its not difficult to make everyone happy when you have virtually unlimited funds to disburse, not everyone is happy with the outcome of his work, and that's probably how it should be.
Should Mandatory Arbitration Be Regulated?
"Mandatory arbitration" provisions have come under harsh criticism in recent years. (Since all pre-dispute agreements to arbitrate are "mandatory," it would be more precise to state that pre-dispute arbitration agreements between parties with unequal bargaining power have raised concerns about their "fairness," but I will use the shorthand "mandatory arbitration" here.) Such provisions are common in consumer, financial and employment agreements, and increasingly seen in healthcare.
Fifth Circuit Overturns Class Action Arbitration Decision
In Reed v. Florida Metropolitan University, Inc., No. 11-50509 (5th Cir. May 18, 2012), the United States Court of Appeals for the Fifth Circuit ruled that an arbitrator exceeded his powers in finding the parties' agreement authorized class arbitration (hat tip to Victoria VanBuren at Disputing).
New Jersey Court Green Lights Provider-Patient Arbitration Agreements
n two rulings handed down over the last two weeks, the Appellate Division of the Superior Court of New Jersey removed any doubt that New Jersey healthcare providers can enter into enforceable, pre-dispute agreements to arbitrate medical malpractice claims.
Guido V. Duane Morris: Court Requires Kabuki Dance For Mediated Settlement
Earlier this year I wrote about the oral argument before the New Jersey Supreme Court in Guido v. Duane Morris. The case concerns the plaintiffs' right to sue their former lawyers for malpractice based upon a settlement the plaintiffs accepted after mediation two years earlier. It required the Court to reconcile two previous opinions, Puder v. Buechel, 183 N.J. 428 (2005) and Ziegelheim v. Appollo, 128 N.J. 250 (1992). In a decision handed down last week, the New Jersey Supreme Court ruled that the former clients could overcome a motion for summary judgment and proceed to trial - essentially to attempt to prove that the settlement agreed to by them could have been better but for the negligence of their former lawyers.
Contracting For The Unknown Using ADR
Healthcare providers and insurers sign contracts every day that extend well beyond the horizon of the world in which they operate. The unknown dimensions of the future healthcare marketplace became even more uncertain with the recent passage of federal healthcare reform legislation. Many of the concepts contained in that law are subject to interpretation and political implementation, not to mention the possibility of repeal or modification by a future Congress.
Emotions In Mediation: Beware The Runaway Train
Every dispute comes to mediation wrapped in emotion. Sometimes it relates to the wrong or harm arising from the conduct that triggered the dispute. Other times, it is simply the emotion surrounding months or years of being on one side of the dispute and believing the other side to be wrong. Or it can be both. Traditional mediation theory holds that it is vitally important for both sides to have the opportunity to express their emotions, and for the mediator to acknowledge them.
What's A Doctor Worth To A Hospital?
In the ongoing symbiotic relationship between hospitals and members of their medical staffs, it is understood that the physicians generate hospital revenue by admitting their patients and ordering tests and procedures. But exactly how much is any doctor "worth" in this sense? Thanks to the HealthLaw Prof Blog, I saw that James A. White recently covered this issue in the Wall Street Journal Health Blog. Citing to a study of 114 U.S.hospitals by physician recruiters Merritt Hawkins, the WSJ produced a chart listing average hospital net inpatient and outpatient dollars derived from referrals, tests and procedures done in the hospital.
Medicaid Cuts Will Strain Hospital - Physician Relations
Kevin Sack wrote earlier this week in The New York Times about the effect Medicaid cuts are having on patients throughout the country. When Medicaid payment rates sink low enough, and too many physicians want out, something will have to give. This is where mediation can help. 1 Comment
Mediating The Healthcare Reform Debate
Even before watching the bipartisan healthcare summit on February 25th, I began to think about how I would mediate the divide between the Obama/Reid/Pelosi reform proposal and the position staked out by the Rupublican leadership. Without knowing it, I was not alone in imagining a mediated solution to this conflict. Mediator Christopher Annunziata wrote in his CKA Mediation and Arbitration Blog that If Anyone Needs a Mediator, It's These People:
Changes In Legal Practice And The Use Of ADR
In case you haven't noticed, the law business - the way law is practiced - has been changing at a rate uncharacteristic of the profession. Financial pressure from the economic downturn is a major contributor to this development. But change was afoot long before the subprime meltdown and stock market nosedive. The viability of the "big law" pyramid model for most purchasers of legal services has been questioned since the starting salaries of newly minted associates crossed into six figures, but only with the disappearance of easy money has awareness of the issue entered the mainstream.
Arbitration Opt-Out Provisions Look Like Good Medicine
Whether you believe healthcare providers should ask patients to sign pre-claim arbitration agreements, it is a practice that is growing among providers tiring of the burdens imposed by the traditional litigation process. I've previously written here why I think pre-claim agreements between healthcare providers and patients requiring arbitration are fine if made under the proper circumstances and without unfair restrictions on the patient's rights. Legislatures and courts have been getting involved on this issue, although for now the ability of providers and patients to agree to arbitrate remains widely accepted.
Healthcare Self-Disclosure - "I'm Sorry" Revisited
I just read an excellent article on the decision process for in-house corporate counsel considering self-disclosure of a regulatory infraction. Richard Marshall's piece in Corporate Counsel, aptly titled "Uuuhhh, Look, We Messed Up Here," provides solid, practical advice that applies to the healthcare industry as well as the more general business audience for whom it was written.