Conflict Resolution in Healthcare

by Kathy Clark & Ruth Rickard Our primary focus in this chapter is conflict resolution in healthcare.  In particular, we look closely at non-adversarial responses to adverse medical events (AME) in both a legal and medical context.  Examination of both contexts will assist in promoting and sustaining the valuable, growing synergy between law and healthcare, which provides the opportunity to expand and enhance communication with patients/clients.  Although we look at these practices in the narrow context of AME, the concepts we discuss apply across the board in most areas of healthcare conflict resolution. Full Chapter Here

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Expanding Dispute Resolution: Design & Use of Anticipatory and Preventative Processes

by Kimberlee Kovach For many, it appears that dispute resolution methods, particularly mediation and arbitration, have greatly increased in use. However, others have questioned whether mediation is under-used—or in other words, is sleeping. A reflection on dispute resolution development and evolution in Texas, based upon the last 35 years, provides some perspective of where we have been, currently are, and the potential of future possibilities. This chapter provides a brief look at the early use of mediation that may be helpful in visualizing the future. Full Chapter Here

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Opinion 675

QUESTIONS PRESENTED May a Texas lawyer, acting as a mediator, prepare and provide the parties to the mediation a proposed written agreement that memorializes the terms of the parties’ agreement reached during the mediation? If so, may the lawyer-mediator propose terms for inclusion in the written agreement in addition to the specific terms agreed to by the parties during the mediation? STATEMENT OF FACTS A Texas lawyer acts as mediator in a dispute between two parties who reach an oral agreement during the mediation. The lawyer-mediator drafts a written settlement agreement, incorporating the agreed terms, and presents it to the parties for review and signing. The lawyer-mediator suggests some provisions in the draft agreement that do not conflict with the parties’ oral agreement but were not expressly discussed during the mediation session. DISCUSSION Under the Texas Disciplinary Rules of Professional Conduct, serving as a mediator constitutes acting as an “adjudicatory

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Where Do We Go Next?

by John DeGroote, Immediate Past Chair Why are we all here, anyway? That’s a question that’s good to ask ourselves every so often, and I believe it’s time for ADR professionals to assess where we are, and where we’re going. At this point we know that settlement isn’t the product of a last-minute chat on the courthouse steps or the smoke-filled conference room I learned about as a young lawyer.  Modern-day dispute resolution, and the mediation or arbitration it usually takes to get there, happens in a much more structured and intentional way.  Even the conference rooms have changed.  Not only are they not filled with smoke, but they often feature natural light, good (or at least better) coffee, and a solid wi-fi connection. Hardly the image from thirty years ago! Since the 90s, ADR has grown from a relatively new idea into an expected part of most legal disputes.

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Ethical Puzzler

by Suzanne M. Duvall Question: May a case worker for Family Court Services participate in and/or assist in the mediation of a case to which the case worker has been assigned? Would your answer be different if the case did not settle at mediation or before trial? John Zerpopoulus, Dallas I think that y’all are wise to consider implications of the arrangement of teaming the custody evaluator with the mediator in mediation. In my opinion, the arrangement has potential problems that could seriously compromise the evaluator’s testimony when the mediation does not settle. As you know, a custody evaluator is appointed by the court to conduct an evaluation to provide information to the court, with a report and possible testimony, regarding the evaluation findings. That task should be jealously protected by the evaluator. The appointing order never states that an evaluator can assist in mediation. Mediators mediate. Court-appointed evaluators do

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It’s a Matter of Trust

Billy Joel sings It’s a Matter of Trust and doesn’t that apply to almost everything we do as mediators? Some attend advanced mediator trainings to find the latest magic tricks to break impasse. But without trust none of these tricks work; unless, of course, you attended the Harry Potter School of Mediation. Yet trainings, beginner or advanced, spend little time exploring trust and its import in the mediation process. Let’s break down trust into three parts: Trust in the process. Trust in the mediator. Trust between the parties. Trust in the Process How do we establish trust in the mediation process? Do parties enter the mediation trusting the process? If not, how do we instill trust? Let’s exclude mediation “frequent fliers” such as lawyers, insurance representatives, and the like who regularly attend mediations. Why should a first-time user of mediation trust the process? What do they actually understand about the

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Colloquy with John DeGroote

From growing up on a horse farm near Pascagoula, Mississippi, to owning his own mediation and arbitration practice in the trendy area of Dallas known as Deep Ellum, John is a man who lets no grass grow beneath his feet. He just stepped down as the Chair of the ADR Section for the State Bar of Texas; during his term, John worked to advance statewide interest in mediation and arbitration. Owning his own shop and being a mediator and arbitrator full time has been an adventure for John to say the least—but he’s been there before.  From his initial plan of being a communications professor, pursuing a master’s degree at University of North Carolina at Chapel Hill, to finding a passion for law and starting his law practice with Jackson Walker in Dallas, John is proof positive that a new adventure can be waiting just around the corner. I know

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Traditional Family Law Mediation

by Michael P. O’Reilly. The biggest difference between family law cases and other types of mediations is the parties’ need to vent and tell their story. Moreover, parties usually do not know what to expect, do not understand the law, and do not appreciate what is, and is not, at stake in a family law mediation. Successful family law mediators educate the parties in all of these areas. Michael O’Reilly shares strategies that mediators can use in this educational process so that the mediation feels successful for all parties involved. Full Chapter Here

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New Frontiers: Early Collaborative (Team) Mediation

by Stacey H. Langenbahn, J.D. & Linda Miller-deBerard. There are a growing number of divorcing couples, unmarried parents, or already divorced parents who want to make decisions privately together for their children, without litigation. Instead, they want to begin the process amicably. They start with either with a neutral Collaborative mediator, or a team of neutral professionals who have targeted expertise and can help them find the right resolution from the beginning. These clients are cost conscious, and fair outcomes are important to them. As a result, groups of professional family mediators are emerging, many with extensive training in Collaborative Law. They are forming core interdisciplinary Collaborative co-mediator teams of a legal and mental health professionals. Stacey Langenbahn and Linda Miller-deBerard offer a Top Ten list of benefits to this type of mediation, and outline what the process looks like. Full Chapter Here

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Parenting Coordination, Parenting Facilitation, and (sometimes) Family Counseling

by Aaron Robb, Ph.D. Research shows that post-divorce parental conflict is the strongest predictor of maladjustment
in children. For parents who continue to experience anger, distrust, or other difficulties in communicating about and cooperating in the care of their children, a parenting coordinator or parenting facilitator may help minimize the children’s exposure to harmful parental conflict. The goal of the parenting coordination or parenting facilitation process is to help parents build a healthy, businesslike relationship with each other. Dr. Aaron Robb addresses how both parenting coordination and parenting facilitation can be useful in resolving family law disputes; and encourage attorneys to consider whether one of these ADR services, or even old-fashioned family counseling, will most efficiently achieve your clients’ goals. Full Chapter Here

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