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Harrisburg Alternative Dispute Resolution Law Blog

What is “baseball arbitration” and how can it be used effectively to resolve disputes? P.2

In our last post, we began looking at a proposed bill that would require health care providers and health insurers to proceed to arbitration when they cannot agree on who is responsible for paying health care costs that exceed a patient’s in-network costs. As we noted, the specific form of arbitration in which the parties would participate is commonly known as “baseball arbitration.” It is also called either/or or final-offer arbitration. This form of arbitration is commonly used to resolve commercial disputes.

In many commercial or other disputes that go to arbitration, one or both parties enter the process with a fixed position they believe is correct or at least reasonable, and expect to be vindicated in arbitration. Ordinary arbitration, fortunately, allows for parties to modify their position in the process and to receive an outcome that doesn’t entirely favor one party over another. That isn’t the case in baseball arbitration. 

What is “baseball arbitration” and how can it be used effectively to resolve disputes?

Medical bills can be burdensome to deal with, particularly when they come unexpectedly. One of the ways patients can be surprised by medical bills is when they end up receiving a service from a provider or facility that is outside their network. This can happen even to patients who are careful about selecting health care within their network.

A bill recently introduced in the Pennsylvania House of Representatives seeks to address this problem by requiring insurers, providers and facilities to work with patients when they unexpectedly receive billing for out-of-network services. Consumers would, under the bill, only be obligated to pay for an amount equal to what they would pay for in-network services. This means that insurers and providers would have to work out who pays the difference. 

Class arbitration in oil, gas lease disputes at issue in federal case in PA, P.2

Previously, we began looking at a federal case in Pennsylvania involving the issue of class arbitrability, or the ability to pursue class arbitration of a dispute. The case we’ve been looking at involves an oil and gas lease dispute, and we mentioned that the federal court ruled that the contractual language did not allow for class arbitration, but require bilateral or individual arbitration.

One of the points the court made in its analysis is that the specific language used in arbitration agreements is important with respect to the question of whether class arbitration is permitted. In short, there must be explicit language permitting class arbitration in order for the courts to allow it. When an agreement is silent as to class arbitration, the presumption is generally going to be that it is not allowed. 

Class arbitration in oil, gas lease disputes at issue in federal case in PA

Arbitration can be a useful tool for resolving disputes in a variety of contexts, but it is important for parties who enter into arbitration agreements to always be thorough and clear in addressing matters that could be disputed down the road. One such issue is the arbitrability of class action cases.

While arbitration is ordinarily bilateral—involving two specified parties—there is also the possibility of class action arbitration. Arbitrating a class on behalf of a class can allow members of the class who don’t have the resources to pursue arbitration to benefit from the proceedings. One issue that can come up when a party attempts class action arbitration under an arbitration agreement, though, is whether the dispute may be resolve that way.

Using alternative dispute resolution to resolve commercial disputes, P.2

Previously, we began looking at the use of mediation to resolve commercial disputes, and some of the benefits this process may present for businesses. These benefits include cost savings, greater control over the process, and privacy. An alternative to the use of mediation is arbitration.

Arbitration has many of the same benefits for resolving commercial disputes as mediation. More control and flexibility, cost savings, and confidentiality are all important factors to consider. According to the ABA, parties are typically also able to resolve disputes much more quickly with arbitration than litigation. Time is money, and this results in extra cost savings. 

Using alternative dispute resolution to resolve commercial disputes, P.1

Commercial transactions, to be successful, must be properly coordinated with a clear understanding between parties of their mutual obligations and rights. When the other party’s duties aren’t fulfilled, quickly addressing the matter is important in order to avoid the financial, reputational, and existential threats to the business that can result.

There are various ways commercial disputes can be resolved, whether through working the matter out privately early on, through litigation, or through alternative dispute resolution processes such as mediation or arbitration. Commercial mediation can be a particularly effective way to resolve commercial disputes. 

What can I expect from my mediator, regardless of training, background and style?

In recent posts, we’ve mentioned a variety of factors that need to be considered when selecting a mediator to handle a dispute. These include not only the training and experience of the mediator, but also his or her background, area of specialty, perspectives, biases and unique approach to mediation. Differences in these factors can certainly make a difference in the success of the mediation process, so a careful decision should be made.

No matter what training, background, perspectives or style a mediator has, though, there are certain things that mediators must do in the mediation process. First of all, mediators are required to inform the parties of several matters prior to beginning the mediation. This includes the cost of mediation, the process of mediation, as well as the benefit of obtaining independent legal advice.

Selecting a neutral mediator: some things to consider, P.3

We’ve been looking in recent posts at some of the factors that should be taken into consideration when selecting a neutral mediator. Last time, we focused on the importance of considering the specific style of mediation a mediation professional prefers to use. As we noted, it probably isn’t possible to clearly categorize every approach to mediation, but two common approaches to the process are evaluative and facilitative mediation.

A third approach to mediation, and probably one that is less used than the others, is often called transformative mediation. Whereas both evaluative and facilitative mediation are mediator driven approaches, transformative mediation is client driven. The aim of transformative mediation is essentially to empower parties to acknowledge and empathize with the other party. Unlike other forms of mediation, it does not have settlement as a hard goal, but instead emphasizes problem-solving. 

Selecting a neutral mediator: some things to consider, P.2

Last time, we began considering some factors worth considering when selecting a neutral mediator. As we noted, mediators all have different in terms of their education and training, experience, background, personality, and personal biases they work to overcome. All these factors should be considered when making a selection of a neutral mediator that is going to carry out the role most effectively in any given case.

Another important factor to consider, aside from those mentioned above, is that mediators all have a unique approach to the process of mediation. While it wouldn’t be possible to categorize every mediator as having a clearly defined approach, experts in mediation often speak about several different types of mediation: evaluative; facilitative, and transformative. Each of these styles of mediation involves a slightly different approach or focus, and can affect not only the way parties communicate, but potentially the outcomes that are reached as well.

Selecting a neutral mediator: some things to consider

Selecting a mediator is an important task for those looking to mediate a dispute. Mediators can vary in a number of different respects, including education and training, experience, style, and personality, and each of these things is important to consider in determining the appropriateness of a mediator for handling a dispute.

Pennsylvania courts require that mediators meet certain specifications, though there are no specific licensing or certification requirements. Mediator credentialing can vary at the national level, depending on the organizations with which the mediator is affiliated. Because of this, the specific level of alternative dispute resolution training varies among mediators.   

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