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

The 16^th meeting of the World Mediation Forum of the UIA was held in Lisbon, Portugal, on January 27-28, 2012.  It was very well attended; Co-President Colin Wall noted that attendees came from 31 countries.

A panel on mandatory mediation brought out some interesting recent developments, including a game-changer in Italy.  Read more »

Tags: Courts, Mediation, Public Policy

A recent U.S. District Court opinion has tested the ethical rules barring mediators from representing a party in a subsequent matter that is “identical” or “substantially related” to the mediated matter.  It found that, at least in the case before the court, that test had not been satisfied and the mediator/attorney was permitted to continue to represent the client. Read more »

Tags: Courts, Mediation, Public Policy