Public Health Law Map - Beta 5 - Medical and Public Health Law Site

the other to agree to ADR. For example, should a managed care organization (MCO)
be allowed to make accepting ADR a condition of enrollment as a subscriber, when the
MCO might be the only health plan offered by the patient’s employer? Should an
employer be allowed to demand that all employees sign a binding ADR agreement to
keep their jobs? The second issue is that ADR is generally secret, unlike litigation
where the issues are aired publically. Should an MCO be able to keep its medical
malpractice claims secret by keeping them out of court? Should an employer be able to
keep workplace discrimination claims, perhaps racial or sexual harassment, secret by
requiring that they be settled through ADR and that the results be kept secret?
1. ADR Techniques
Of the several ADR techniques, the best established is arbitration, an agreement to
use a private individual to decide the dispute and determine the damages, if any. If a
party refuses to comply with an arbitration order, it can be enforced as a contract in
the courts. The American Arbitration Association (AAA) provides a uniform set of
rules for arbitration and a roster of approved arbitrators. In the usual agreement, each
side chooses one arbitrator and these two arbitrators choose a third. Because there is
a requirement that arbitrators have legal training, these arbitrators are often attorneys
or retired judges.
The other techniques do not impose a binding settlement but are intended to help the
parties resolve the dispute themselves. In mediation, each party agrees to share
information with an impartial person who seeks to find areas of agreement that might
otherwise be overlooked. In the simplest situation, the parties actually have common
objectives but do not realize it. For example, a plaintiff may be willing to settle a
$300,000 claim for as little as $100,000. The defendant, who has offered only
$10,000 to the plaintiff, may be willing to pay as much as $110,000. In a lawsuit,
these parties might expend enormous resources on pretrial preparation before
reaching a settlement. The mediator can help them resolve the dispute without this
prolonged warfare.
Mini-trials allow the parties to see what their cases will look like to a jury. These are
used most commonly in disputes between corporations, but they can be useful in
medical business disputes. In a mini-trial, each side’s attorneys and experts present a
brief (usually only a few hours) synopsis of their case. This is presented to the parties
themselves rather than an arbitrator. The value of a mini-trial is that it allows a party
to see the case through the eyes of the opposing counsel. In litigation, parties are
carefully isolated from the opposing counsel until the trial itself. This makes the
parties dependent on their own attorneys for information about the case. The
attorneys, however, may not know the other side’s strategy. More fundamentally, it
is difficult for attorneys to remain objective while zealously representing their
clients. The mini-trial ends this isolation and gives both parties more information
about the nature of their case.
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