Business Conflict Blog

For the past ten years (and counting), Dr. Ivan Sutter and Oxford Health Plans have been engaged in a dispute arising from a 1998 agreement pursuant to which Dr. Sutter would provide health services to Oxford’s members and Oxford would compensate the doctor at a predetermined rate.

Seeking quick, efficient resolution of any disputes between them, Oxford and Dr. Sutter agreed that:

No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the Rules of the American Arbitration Association with one arbitrator.

The doctor initiated this process, however, by filing a complaint on behalf of himself and other Oxford providers in New Jersey Superior Court, arguing that referral of class claims to arbitration would violate New Jersey public policy.  Oxford successfully moved to compel arbitration, the court leaving to the arbitrator the question whether a class should be certified in the arbitration proceeding.

The arbitrator (the estimable William L.D. Barrett) determined in 2005 that the agreement allowed for class arbitration, basing his finding on his interpretation of the arbitration clause.   Oxford unsuccessfully moved to vacate that Class Determination Award before the US District Court, and the denial was affirmed by the Third Circuit in 2007. 

Then the arbitration proceeded to the merits.  (See how quick arbitration can be, students?)  Read more »

Tags: Arbitration, Courts

J. Michael Hand didn’t like the Walnut Valley Sailing Club’s storage shed.  A member of the club, though not disabled himself, Mr. Hand thought the structure didn’t comply with the accessibility requirements of the Americans with Disabilities Act.  So he sued.

The Walnut Valley Sailing Club didn’t like being sued, and it terminated Mr. Hand’s membership in the club.

Mr. Hand didn’t like getting terminated, so he sued again, this time for unlawful retaliation under the ADA.

The U.S. District Court for the District of Kansas ordered the parties to mediation, which proved unsuccessful.  And after the mediation Mr. Hand sent an e-mail to at least 44 club members (and others) disparaging the club’s positions and relating all the details of the mediation, including what the mediator said and the amount of the club’s settlement offer.

The District Court didn’t like that.  Indeed, it didn’t like it so much that it dismissed Mr. Hand’s suit with prejudice, by way of sanction.  Mr. Hand did what any good American would do — he appealed to the Tenth Circuit Court of Appeals. Read more »

Tags: Courts, Mediation, Public Policy

I remember attending the first meeting of the Dispute Resolution Section of the American Bar Association, in Boston, in 1999. I was on a panel discussing Y2K, and absolutely everybody I had ever met in ADR was in attendance. Y2K has since moved on, but the ABA Dispute Resolution Section has grown and grown. It meets this year in Washington DC and the schedule is so full it’s like a three-ring circus: You attend one thing, all the time kicking yourself because you’re missing two others.

Read more »

Tags: ADR, ADR Institutions, Arbitration, Mediation

This post continues a discussion of some recent court opinions concerning the enforceability of settlement agreements reached during mediation, but subsequently disowned by one of the parties.

In Williamson v. Boehringer-Ingelheim Pharmaceuticals (N.J. App. Div. A-6291-10T1, March 12, 2012), plaintiff sought damages from her employer for alleged violations of the New Jersey Law Against Discrimination and other related theories.  The parties participated in voluntary, private mediation that lasted nine hours.  At the conclusion of the mediation, a document was signed by plaintiff, the defendants’ attorney and the mediator(!), reciting that plaintiff would dismiss her complaint with prejudice and receive certain payments and other benefits from defendants. Read more »

Tags: Mediation