May 30, 2025 • 44 mins
Linda A. Michler, Arbitrator and Mediator, speaks with Christopher C. Murray, Partner, Ogletree Deakins, about arbitration in the health care employment space. They discuss how arbitration works; the strengths and weaknesses of arbitration; and issues related to selecting an arbitrator, cost, mediation, class action waivers, and mass arbitration. They also discuss special considerations related to health care employment arbitration, how employers and their counsel can make employment arbitration successful, and AHLA’s Dispute Resolution Service and Rules of Procedure for Employment Arbitration.
Essential Legal Updates, Now in Audio
AHLA's popular Health Law Daily email newsletter is now a daily podcast, exclusively for AHLA Premium members. Get all your health law news from the major media outlets on this podcast! To subscribe and add this private podcast feed to your podcast app, go to americanhealthlaw.org/dailypodcast.
Stay At the Forefront of Health Legal Education
Learn more about AHLA and the educational resources available to the health law community at https://www.americanhealthlaw.org/.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_00 (00:00):
Thank you.
SPEAKER_02 (00:27):
Welcome, and we hope you enjoy today's AHLA podcast
on the intersection of physicianemployment and practice group
contracts in alternative disputeresolutions.
specifically AHLA's DisputeResolution Services.
With us today is Christopher C.
Murray Esquire, a partner withOgletree Deacons in its
(00:48):
Indianapolis office, and LindaA.
Mickler Esquire, arbitrator andmediator, a member of the
arbitration and mediation panelsfor the Dispute Resolution
Services and chair of theDispute Resolution Services
Dispute Review Board.
At the beginning, I will saythere are many practice areas
(01:10):
for an attorney in healthcare.
Generally, we could say thereare healthcare transactions,
healthcare litigation, andregulatory healthcare
compliance.
Disputes impede the closecooperation needed to deliver
quality healthcare arbitrationand It can be used as a
resolution tool and isparticularly well suited for
(01:33):
disputes involving healthcarebecause of the complex nature of
the healthcare marketplace andits highly regulated nature.
What can your healthcare entitydo to ensure that a dispute is
resolved and it's private ratherthan having a public litigation
record?
This is what we're going to bediscussing today, Chris and I,
and I want to start off bysaying AHLA maintains a national
(01:57):
roster of arbitrators,mediators, and hearing officers
with health law expertise.
Chris, your firm has had a lotof experience with employment
litigation and arbitration.
What have you learned about thestrengths and weaknesses of
both?
SPEAKER_01 (02:14):
Well, good afternoon, Linda, and thank you
for the opportunity to join youtoday to discuss employment
litigation or arbitration,actually, as an alternative to
litigation.
I think it might be helpful forthose listening to review kind
of quickly what arbitration isfor those who aren't familiar
(02:36):
with it.
So arbitration, and inparticular, employment
arbitration, is a way forparties, employers, and
employees to attempt to resolvetheir legal disputes without
having to go to court.
The way that works typically isthat the employers have an
(02:56):
arbitration policy orarbitration agreement with their
employees that provides thatboth sides will waive their
right to go to court and waivetheir right to a jury trial and
instead will attempt to resolveany disputes between them
through arbitration or otheralternative dispute resolution
(03:18):
processes.
So the way arbitration worksthen is that when a dispute
arises between an employer andan employee, they select a
neutral third party, that wouldbe the arbitrator, to resolve
the dispute.
And then the arbitratorfunctions very much like a
judge.
The parties would have the rightto conduct discovery or present
(03:41):
evidence and witnesses like at atrial, but the whole thing is
more informal.
Often, as you mentioned, moreprivate.
For example, the hearing, anarbitration hearing, would
typically take place in aprivate conference room rather
than a public courtroom.
But the arbitrator still has thepower to award all of the same
(04:03):
remedies that a court wouldhave, including monetary damages
or injunctive relief.
So the outcome of thearbitration would be similar to
what could be obtained throughtrial.
So the arbitration agreementsthat employers use typically set
up a procedure for the partiesto follow including a procedure
(04:28):
for selecting an arbitrator.
And then often they mightidentify an administrator, an
arbitration administrator, suchas the American Health Law
Association's Dispute ResolutionService.
But that administrator thenwould assist the parties in
conducting the arbitration.
So that's kind of a quickoverview of what arbitration is.
(04:50):
And you had...
You had asked about kind of thestrengths and weaknesses or pros
and cons of arbitration.
And I would say from theemployer's perspective, there
are a number of benefits thatparties often see employers in
(05:10):
particular from arbitration.
Arbitration tends to be quickerthan litigation.
I think I've seen some studiesthat show that arbitration and
employment arbitration tends tolasts about half as long as a
typical case in federal court.
Sometimes the costs can belower, but I think we're going
(05:32):
to talk a little bit more aboutthat later.
There's an important caveat tothat.
Arbitration isn't always cheaperthan litigation.
But some of the other advantagesthat employers see to
arbitration are no risk ofrunaway jury awards, like you
can sometimes see in courtcases.
The whole process is a littlemore informal than in court.
(05:56):
So that allows the parties maybeto, for example, to have more
flexible deadlines or havegreater say in when their
hearings will be scheduled thanthey would have in court.
There tends to be a little moreconfidentiality than court
because it's not in the publiccourt system.
And of course, the arbitratorstend to have employment law
expertise, which can be a bigbenefit to the parties.
(06:20):
That said, there are some thingsthat employers should be aware
of that are downsides orpotential negatives to
arbitration.
I know we're gonna talk, as Imentioned, we're gonna talk a
little bit more about the costs,I think.
That can be a pro and a con.
There are, for example, otherfees that employers are
(06:41):
responsible for in arbitrationthat they don't have in court
cases.
Employers are responsible forpaying the arbitrator's fees.
for paying the arbitrationadministration fees as well.
So that can drive up the cost.
Some employers find that theyare less likely to get summary
judgment in arbitration thanthey might in court.
(07:04):
So there may be more hearings inarbitration than there are jury
trials in court.
And then there are often limitedappellate rights.
I know we'll talk a bit aboutmore about that later too.
So those are some of the risks.
And the last thing I wanted tomention, and this tends to be
one of the things that attractsemployers most, is that in
(07:26):
arbitration, you can have aclass action waiver because
arbitration is intended to beconducted on an individual
basis.
So those are some of the prosand cons that I've seen, Linda.
SPEAKER_02 (07:38):
Thank you.
One of the questions that I willget is, do parties really need
to use an administrator to agreeon an arbitrator?
Could they also select anarbitrator by themselves?
I'm going to give my opinion onthat.
And then Chris, I'm going to askyou about yours too.
I think that it's important toremember that both the employer
(07:59):
and the employee want anenforceable award should the
proceeding get to an award.
Remember too, that arbitrationsalso settle.
And that in an arbitration, yourarbitrator is not going to be
able to speak with the partiesindividually.
We've already brought up thatwithout the publicity that
(08:23):
litigation can have, that's anadvantage of mediation and
arbitration.
And in answer to the questionabout an administrator,
sometimes the parties will agreeif they do it early on.
to select a mediator and do amediation and wait to go into
arbitration and see whathappens.
Other times that you can do amediation at any time during an
(08:47):
arbitration and it's importantto note that.
Chris, do you have any comments?
SPEAKER_01 (08:52):
Yeah, I'm glad you mentioned that Linda.
We often see in arbitrationagreements that there will be an
option for the parties to agreeto an arbitrator by themselves
without using an administrator.
Typically, for example, anagreement might say that after
somebody gives notice thatthey're going to pursue an
(09:14):
arbitration, the parties willhave maybe 30 days or 45 days to
see if they can agree on anarbitrator between themselves.
And then if they're unable to dothat, then at that point, they
would turn to an administratorfor assistance like AHLA and
then use the administratorselection process.
(09:36):
So I definitely see that as acommon option.
And one big benefit to that foremployers, if that happens to
work out, is that it can reducethe cost somewhat of arbitration
if they follow that option.
Would you see any downsides?
I'm just curious from yourperspective as an arbitrator,
(09:56):
whether you would see anypotential downsides to the
parties to selecting anarbitrator directly between
themselves?
SPEAKER_02 (10:08):
An arbitrator has to maintain and make sure that an
award is enforceable.
So I don't...
Yes, there are...
roles out there where a partycan do that.
But I would encourage anadministrator for an
arbitration.
A mediation, I think, is adifferent matter, and it
depends.
(10:28):
It's very fact-specific.
You want somebody who is goingto be, well, we're going to get
into a little bit about thediscussion about mediators and
the qualities that you want tolook for.
However, usually by the time theparties in employment or
(10:49):
healthcare-related litigationget to where they're talking
arbitration, they pretty much,by and large, cemented their
positions.
So you talked about the lowercost, but with a caveat.
Let's talk about that a littlebit.
We've mentioned the cost isArbitration is less expensive
(11:13):
for employers than litigation.
Mediation also would be.
But let's talk a little bitabout what you look at and
trying to decide which way togo.
You've already mentioned the norunaway jury verdicts.
The more flexible deadlineswould be another one.
Any other thoughts?
SPEAKER_01 (11:33):
Yeah, so I think...
I think it's important foremployers to know what they're
getting into when they adoptarbitration.
And I think sometimes there's amisconception that an individual
arbitration case will be cheaperthan litigation for an employer.
And that is not necessarily thecase.
(11:56):
So if an employer is justlooking at costs on a
case-by-case basis, they may notsee that those costs are cheaper
in arbitration.
However, what we also see andwhat we hear, and some of this
is anecdotal from companies thatadopt arbitration programs, is
(12:19):
that their costs in theaggregate go down.
And I think what I mean by thatis the overall amount that they
spend dealing with employmentdisputes, which would include
not only their own attorney'sfees, but also, you know,
amounts they pay out to resolvethese matters or settlement or
(12:40):
so forth, or in, you know, kindof worst case scenario, the
amounts that they pay asdamages, if they have adverse
decisions against them, thatwhen you look at those costs in
the aggregate, employers witharbitration programs do see
their costs go down.
And I think, you know, I thinkthere's, there are some
explanations of, differentexplanations for why that is.
(13:00):
One is that settlement amountstend to be a bit lower in
arbitration than in litigation.
And that goes back to what youmentioned a moment ago, Linda,
was about the risk of runawayjury verdicts in court cases.
Well, because there isn't thatrisk in arbitration, that's one
(13:21):
theory for why the settlementamounts tend to be, on average,
a little bit lower inarbitration.
And then there's also thebenefit that cases are resolved
at an earlier stage when youhave an arbitration program,
especially if it includesmediation, as you've mentioned
mediation being related toarbitration.
(13:44):
So because the cases can beresolved more quickly in
arbitration or with arbitrationprograms, that can be another
reason for the overall costsbeing lower.
So I would just, as a generalpoint, I would just caution
employers thinking aboutadopting arbitration programs to
understand that it's not goingto be on a case-by-case basis
(14:08):
that it may be cost savings.
It's going to be more importantto look at the costs in the
aggregate.
SPEAKER_02 (14:16):
One advantage of an arbitration or a mediation is
the confidentiality.
of the proceedings and asettlement that includes, if it
is done in an arbitration or inmediation, that includes the
wording that both parties agreeupon to maintain the
confidentiality.
And from a mediator's viewpoint,a mediator is gonna insist in
(14:43):
the mediation agreement that itinclude, that the parties
understand that everybody isgonna be bound the mediator
themselves also have a duty tokeep things confidential.
The other item you can expect ina mediation is that a mediator
(15:07):
is always going to want to seeexamples from both parties of
what they want in a mediationfor a settlement, because it's
not just monetary.
It can be other things as well.
Yes, usually monetary, butespecially in an employment
setting or in a healthcaresetting, there are other factors
(15:27):
that can come into play that maymake the party say, okay, we'll
settle on that basis.
Chris, do you have anything youwant to add to that?
SPEAKER_01 (15:36):
Well, yeah, I think mediation can be a huge benefit
to any sort of arbitration orADR program for all the reasons
that you mentioned.
And So I guess I would justmention for employers who are
thinking about adopting anarbitration program, they should
be aware that they can includemediation as a component to
(15:58):
that.
Now, there are some, they'llwant to consult with their
counsel because there are somequestions about whether
mediation prerequisites.
If you have an arbitrationagreement, for example, that
says the parties have to go tomediation before they can
actually go to arbitration,that's something employers
should consult with theircounsel about whether that type
(16:20):
of requirement would beenforceable in their
jurisdiction.
But I would say that But theemployers that I work with that
have mediation built into theirarbitration programs, they tend
to be very happy with thatbecause it allows the parties or
maybe compels the parties tojust start having those
(16:41):
discussions earlier in theprocess about resolving the
matter.
And oftentimes they'resuccessful and as a result can
avoid a lot of headache and costdown the road.
SPEAKER_02 (16:53):
some of the things that i would recommend for
employers and employees tomaximize the benefits of both
the mediation and thearbitration talk with the
opposing counsel early and withmediators also early and go to
mediation early i think we allknow that cost of a proceeding
(17:14):
can be a prohibition to actuallysettling if we go too far out in
the process.
And the idea is to finish thedispute, whatever it might be,
by everybody involved earlierrather than later to avoid the
(17:37):
possibility that you may not besettling because of the costs
that have been expended.
some qualities in mediation forthe mediator, the ability to
discuss equally with both sides,trust by the parties of the
mediator, empathy andobjectivity, but also the
(17:59):
ability to see the matter as theparties see it subjectively, as
they will see it subjectively.
They will be up against thewalls And that's also true in
arbitration.
They'll have their positions andthey're gonna stick with them.
The mediator also has to havethe ability to look at both
(18:21):
sides and the case law and tryto figure out what the sticking
point is in each side's case.
And frankly, use it to theadvantage for a settlement.
Talk to the parties about that.
And as I said before, mediatorsalso have the ability to work
with something other than justmonetary elements.
(18:47):
Chris, how common is mandatoryemployment arbitration?
Are you seeing any trends interms of employers adopting or
discontinuing employmentarbitration programs?
SPEAKER_01 (18:58):
Yeah, I'd say it's very common and increasingly
common.
So our firm...
Last year, Ogletree Deacons, wedid conduct a survey of our
clients.
And as part of that survey, weasked a number of questions
about the use of arbitration.
And that survey resulted in someinteresting data, I thought.
(19:24):
Overall, I think it was maybeabout 1,300 employers that
participated in the survey.
And one of the things we saw isthat if you look at all
employers generally, and thiswould be employers from small
employers with fewer than 1,000employees to very large
(19:44):
employers with over 20,000employees, on average, about
almost 44% of our respondentsare currently using arbitration.
And then on top of that, there'ssignificant additional
percentage i think it was about13 on top of that responded that
(20:05):
they are don't currently usearbitration but are considering
implementing it um and that'swhen you look at all employers
together when you lookspecifically at larger employers
we found that even more of themare using arbitration so for
employers that have 20 000 ormore employees 50, almost 56% of
(20:26):
our respondents currently havearbitration programs and another
9% are looking at it.
So I'd say it's very common,especially as I mentioned among
larger employers.
And I think it's continuing togrow.
I'd be curious to hear whatyou're seeing and from the
perspective of an arbitrator,whether you have a sense of, you
(20:50):
know, more employers adoptingarbitration or whether that's
kind of visible to you from yourposition as an arbitrator?
I
SPEAKER_02 (21:00):
think arbitration generally is increasing and so
is mediation.
And it's for all the reasonsthat both of us have discussed.
You've mentioned the classaction waiver.
Employment arbitration isintended to be a one-on-one.
So do you have anything you wantto add as far as the class
(21:22):
action waiver?
Or perhaps we should discuss alittle bit about how that is
handled from an employerviewpoint?
SPEAKER_01 (21:29):
Yeah.
Yeah.
So I do think that's probablyone of the things that has
really been driving theincreased use of arbitration by
employers.
So back in 2018, the SupremeCourt definitively decided that
that employers can use classaction waivers in their
arbitration agreements.
(21:50):
It had been an open question upto that point.
And so since 2018, I thinkthat's even increased the rate
at which employers are adoptingarbitration.
The class action waiver, it's avery appealing aspect of
(22:10):
arbitration for employers.
Like I said, the whole theory ofarbitration is that it should be
hopefully quicker and lessformal and possibly less
expensive.
And individual arbitration is akey part of that.
And that's one of the things theSupreme Court has noted about
(22:31):
arbitration.
When it's on a one-on-one basis,it allows the parties to focus
on the merits of the case and,if necessary, get to a hearing
on those merits more quicklythan on a class basis.
Linda, as you probably haveseen, there is, however, a
(22:51):
phenomenon now called massarbitration that has kind of
developed in recent years.
And I'm wondering if you've seenevidence know any increase in
activity with mass arbitrationsfrom from your perspective as an
arbitrator
SPEAKER_02 (23:06):
yes there is um and let me first differentiate
between class actions and massarbitrations mass arbitrations
are within the contract there iswording that says they're going
to go to arbitration and they'reall put into arbitration pretty
(23:26):
much I don't want to saytogether, but pretty much at the
same time.
In that type of situation, youhave a process arbitrator that
will determine how the mattersare going to be handled.
You have the arbitration, andthen you have a situation where
it's sort of like the back end,the arbitration, and then the
(23:48):
front end, what other issueshave to be addressed.
I do think that it's appropriatein certain situations Do you,
have you seen where mostemployers will use arbitration
with only certain types ofemployees or with all of them?
SPEAKER_01 (24:05):
Well, in my experience, there hasn't, you
know, I have not seen employerslimiting arbitration to just
certain types of employees.
And I'm not aware of really anybenefit to doing that.
I will add one caveat there, andthat is there is a category of
employees that kind of generallyreferred to as interstate
(24:30):
transportation workers.
And those would be like truckdrivers who are delivering
product interstate or maybewarehouse loaders who are
loading and unloading suchproduct.
Those employees, which areprobably not really...
I would assume probably not...
(24:52):
probably not a concern for a lotof healthcare employers, but
those types of employees mayneed to be treated differently
just because the law that coversarbitration, the federal
arbitration act carves out thoseemployees.
They're not subject to thefederal arbitration act.
So sometimes they needed to be,they need to be treated
differently based on whateverstate law is applicable to them.
(25:16):
But outside of that issue youknow, the employers I work with
tend to just use arbitrationbroadly for all employees.
SPEAKER_02 (25:24):
Interesting.
SPEAKER_01 (25:26):
Yeah.
And have you, I'm curious, haveyou seen, you know, especially
with maybe the healthcareindustry, have you seen
employers, you know, handlearbitration differently?
No, there are
SPEAKER_02 (25:41):
a variety of things that can go into a healthcare
arbitration case.
And you can even see the samething in the same case as
concerns the physicians in thehospital.
Some examples, healthcareorganizations sell, buy, merge
with other entities and otherpractices.
They collaborate betweenhealthcare providers to ensure
(26:03):
legal and financial interest,leasing property for facilities,
service agreements, not just astandard employment contract.
An employment contract, goingback quite a few years, was a
rather simple document.
That's not the case today.
It will talk about a physicianhaving duties in a certain
(26:26):
situation and then having othersas well, depending upon the
agreements that the hospital haswith the physician practice.
Vendor agreements, serviceagreements, employment
agreements, they're all meant toprotect a client's interest.
Physicians leaving for anotherhospital can also cause issues
(26:47):
and arbitrations, and you willsee that.
Other possible issues that willcreep up, compliance audits,
investigations, enforcementactions, and those are obviously
involving regulatory andcompliance audits and appeals,
Medicare, Medicaid.
You've mentioned one of theacts, the Administrative
(27:10):
Procedure Act, governmentreimbursement questions,
payer-provider disputes.
All sounds a little bit dauntingto someone who might be new at
it, but somebody who's seasonedwill see those type of things
regularly.
So getting cases intoarbitration is the starting
(27:32):
point.
The benefit comes only if theprocess is managed properly.
What do in-house and firmcounsel need to do to make
employment arbitrationsuccessful?
Chris, you want to tackle that?
SPEAKER_01 (27:47):
Yeah, sure.
So I think, I think first andforemost, uh, the, the, for the
employer, uh, or I guess themost important consideration at
the outset is they want to makesure that they've got an
arbitration agreement that'senforceable.
If it's not enforceable, they'regoing to find themselves
involved in all sorts ofsatellite litigation, litigating
(28:08):
in the court, whether it's anenforceable agreement or
litigating that issue before thearbitrator.
And that can all become anexpensive distraction.
So to get the benefits, youknow, the benefits, especially
of arbitration, quickerresolution and cheaper
resolution to get those benefitsfrom arbitration.
(28:30):
An employer is going to want tomake sure that their agreement
is enforceable.
And to do that, they shouldprobably have it reviewed
relatively regularly every yearor so, because this is an area
where there are a lot of changesin the law.
There's changes, whether it's inthe case law, or in federal or
(28:51):
in regulatory law, states areregularly trying to litigate
arbitration issues.
So it's good to have agreementsreviewed somewhat regularly to
ensure they're up to date.
On the issue of enforceability,employers are also wanting to
give some attention to just howthe agreement is presented to
(29:13):
their applicants and employees.
That's another big question forenforceability.
So especially if they'readopting a new program, they'll
want to think about how it'sgoing to be distributed to new
employees and to currentemployees.
Will it be, for example, will itbe distributed as part of a job
application or will it bedistributed as part of an offer,
(29:35):
a job offer, or as part oforientation materials or, you
know, as part of the materialspolicies, for example, uh, that
are signed during onboarding.
Um, another question would belike, how do you deal with
current employees?
If you're, if you're adopting anew program and how will it be
distributed to those people?
(29:56):
Um, and how to do thateffectively and in an
enforceable way.
Um, another thing that I thinkemployers will want to think
about is just how is recordkeeping, uh, how will these
arbitration agreements, oncethey are executed, be retained
for future reference?
Because it's not uncommon tohave employees who are with a
(30:20):
company or with an employer formany, many years after they've
onboarded.
And The employer is going toneed to be able to, you know, if
a dispute arises five or 10years down the road, the
employer is going to need to beable to access that agreement.
And I'll mention there just, youknow, one kind of example of one
horror story that we had at onepoint.
(30:41):
One of our clients had used athird party to retain its
employment contract.
It's documentation and thenswitch providers at some point
and provided copies ofeverything they had to the
employer when it was switchingproviders.
And it turned out that many ofthe arbitration agreements,
which were two-sided documents,had only been scanned once.
(31:06):
on single-sided scans.
So they had all of thesearbitration agreements that they
were missing basically half ofbecause they were only half
scans.
So it's little things, littledetails like that, that the
employers want to pay attentionto, to ensure that they have an
enforceable agreement.
So Lynn, I'm curious from yourperspective as an arbitrator,
(31:29):
what are some of the thingsyou'd recommend employers do so
that they can get the most outof arbitration and make it as
effective as possible.
SPEAKER_02 (31:37):
And I'm going to expand on what you just said,
because it certainly is a whoopsstory, as well as a horror
story.
It's not just the agreements.
It is the papers that you need.
Keep track of the informationthat you need to prove your
case.
Obviously, with litigation, youput a litigation hold on.
(32:00):
With arbitration, do the samething.
Let everybody know.
The same could be true withmediation, depending upon what
it is that you are mediating.
Remember, an arbitrator cannotspeak individually with the
party.
Employers and employee counselcan.
(32:21):
Keep track of the informationyour client has.
Try to avoid extensive discoverydisputes.
The procedure of arbitration ormediation is not meant to be,
let's just do as much discoveryas we can.
Yes, discovery will be limited.
It will be limited with severaldifferent parameters.
(32:45):
And it is something that thearbitrator will address with the
parties during the schedulingconference or when a dispute
arises.
SPEAKER_01 (32:56):
Yeah, Linda, one of the things that I had mentioned
is during the pros and cons ofarbitration was that typically,
appellate rights are morelimited in arbitration.
I'll expand on that just brieflyfor those who are new to
arbitration.
And that is, unlike in a courtcase, if one party loses, they
have a right to appeal to thecourt of appeals.
(33:17):
In arbitration, the arbitratoris usually given the authority
to issue a final binding award.
And then there really is no wayto appeal often from an
arbitration award.
However, that's not always thecase, and the parties and
employers can change that whenthey're preparing their
arbitration programs.
(33:39):
And I'm just curious if youcould maybe describe a little
bit about what the appealprocess is that's available
under the AHLA's rules andprocedures, because I think
that's kind of a unique process.
SPEAKER_02 (33:53):
AHLAA does have an appeal process which will
hopefully correct any issues andprevent going into the courts
and do so faster than thecourts, at least in theory.
As Chris mentioned, under theFederal Arbitration Act and the
state arbitration statutes,courts can vacate an award only
upon evidence of misconduct orbias or if the arbitrator
(34:16):
exceeded the powers granted bythe parties.
An award containing factual orlegal errors will be confirmed.
Such awards are rare, but nodispute resolution system is
perfect.
AHLA's Rules of Procedure forArbitration Appeals provides for
a panel of three healthcarearbitrators, which may review an
(34:39):
award under the same standardsapplied by an intermediate court
of appeals to a trial courtverdict.
The award may not be remanded tothe original arbitrator an
appellant panel offers subjectmatter expertise and speed the
panel must issue an award within30 days after an oral argument
(35:02):
or after briefs are submitted ifthere is no argument this is
quick and it's meant to be likeother arbitration awards and
appellate panels decisions setsno precedent good or bad and
that's important to noteSpeaking of employment
arbitration and the procedure,since we've talked a little bit
(35:23):
about the appeals procedure, Ijust want to point out that with
the employment arbitration andother types of arbitration that
AHLA handles, they are reviewedand the AHLA rules of procedure
for employment arbitration, themost recent version is effective
(35:45):
February 6th, 2025.
It's possible, although Iactually have not handled one in
the healthcare industry, it'spossible to streamline the
process and do a deskarbitration where it's
appropriate if the partiesagree.
Another point is that if anemployee voluntarily files a
(36:05):
claim under a mandatoryarbitration clause, the employer
is responsible for paying thebasic filing fee for a list of
five candidates.
Let me go back for a minute andtalk about the desk arbitration.
One instance where that can beused, and it depends often on
how the state is handling the NoSurprises Act.
(36:27):
There are some states that haveprocedures set up and desk
arbitrations, for instance, willbe used.
In more complex situationsinvolving the hospital, the
physicians, the billing, I havenot seen that.
And I think it's for the samereason, Chris, that you have
(36:47):
broken down what you see withemployment arbitrations.
From your perspective as anemployment attorney, what do you
think?
Do you continue to see growth inthe use of arbitration?
SPEAKER_01 (37:03):
Yeah, I think we will continue to see that.
You know, there's oftencriticism of arbitration.
For example, back in also the2018 time period, there was some
negative publicity forarbitration around the Me Too
(37:26):
movement, for example.
And that was because there wereseveral leading figures in that
movement, Gretchen Carlson inparticular, whose story was a
big part of that movement.
She happened to have anarbitration agreement with her
employer.
And so there was some negativeattention to arbitration at that
(37:47):
time.
So one thing I do want tomention, and just to be clear,
is I have never seen anyconnection between the use of
arbitration and that encouragingor allowing or condoning any
sort of improper conduct in theworkplace.
I've certainly never seen that.
(38:08):
And I don't think I've certainlynever seen any studies
suggesting that.
So there was some negativepublicity around that time.
But despite some of thecriticisms, all of the reasons
we've talked about for adoptingarbitration, I think, continue
(38:30):
to be attractive to a lot ofemployers.
And I think the rate at whichemployers are moving towards
arbitration, at least from whatI have seen, has only...
continue to increase, actually.
So I think arbitration, I thinkit will continue to grow.
As I mentioned, based on thosesurvey results, there are a lot
(38:56):
of employers using it.
Now, Linda, you had mentionedmass arbitrations, and we talked
about that a little bit earlier,and you described it.
So I would say that that is kindof a current developing...
a new development in arbitrationthat has and cause employers to
(39:17):
kind of think, well, do I wantto go down this route if I might
end up being exposed to a massarbitration?
And just to kind of underscorewhat the risks are from an
employer's perspective, thesemass arbitrations are when a
plaintiff's attorney, anemployee side attorney,
basically recruits a number ofclaimants to file claims all
(39:41):
basically all at the same timeand often identical complaints.
It could be just a handful ofclaims that are filed, but in
the worst case scenario, itcould be hundreds, for example,
in like a wage an hour type ofsituation where somebody is
challenging a wage an hourpolicy.
The challenge that presents foremployers is that as we've
(40:02):
talked about, employers areresponsible for the arbitration
costs, the arbitrator's fees andthe administration fees.
And so when a mass arbitrationis filed, the employer is
suddenly on the hook forarbitration at filing fees and
related fees that can be veryexpensive.
So I will say that, at least inmy experience, and I'm not sure
(40:28):
what you've seen, Linda, but inmy experience, I'm not seeing a
lot of mass arbitrations.
They are challenging also fromthe plaintiff's attorney side.
I mean, they are big cases thatrequire a lot of time and
investment of resources from theplaintiff's side.
So we haven't seen as many as wethought we might see.
(40:49):
That said, I will say that if anemployer gets hit by one, it can
be challenging.
But Linda, I'm curious if you'reseeing very many mass
arbitrations.
SPEAKER_02 (40:58):
I think there's a future where you may see more of
those.
It's going to depend how itdevelops.
And yes, we have seen thembefore.
I think it's important toremember that as an arbitrator
and mediator, both thearbitrator and the mediator have
to be neutral.
And that is extremely important.
(41:18):
AHLA does have a process wherethey've got a panel, a dispute
review panel.
And if the parties...
or counsel have an issue withthe proceeding that is
occurring, they do have and canfile a petition for removal.
So that doesn't end up in thecourts either.
(41:39):
It is reviewed.
It is usually reviewed withoutthe arbitrator or arbitrators
ever knowing that it has beenfiled.
And a decision and opinion isprovided by the dispute review
panel.
And Again, the whole thing isthe idea of neutrality, ethics,
(42:05):
the roles, and keeping thingsprivate.
Our justice system is lengthy,it's long, it's not private.
It's important, and I think thisis talking about the future,
it's important for ourarbitration system to be one
that the parties can afford andcan complete in a relatively
short timeframe.
(42:26):
And counsel, and the arbitrationadministrator and the arbitrator
need to keep that in mind.
I see the use of arbitration andmediation increasing if we do
that.
So with that said, do you haveany other items that you want to
discuss, Chris?
I want to thank you for thechance of doing this discussion
(42:50):
today.
I think that It has beeninformative.
And yes, I am wrapping thingsup.
So do you have anything
SPEAKER_01 (43:01):
you want to add?
No, no, just thank you.
Thanks a lot for the chance tovisit with you this afternoon
about arbitration.
I think it's a reallyinteresting area.
And I think it already ischanging.
you know, the world ofemployment litigation.
And I think it will continue todo so and impact how we resolve
(43:25):
claims.
And I, you know, I'm hopeful,I'm hopeful that mediation in
particular, mediation andarbitration will ultimately lead
to a, I guess, an overallprocess where employment
disputes can be resolved muchmore quickly and effectively and
for the benefit of bothemployees and employers.
(43:46):
I don't think it benefitsemployees either to have to wait
years for disputes to beresolved.
So I think there's a lot ofpotential there.
But thanks a lot for theopportunity to visit with you
this afternoon on these topics.
It's been a pleasure.
SPEAKER_02 (44:01):
And it has been a pleasure too.
Thank you very much.
SPEAKER_00 (44:10):
Thank you for listening.
If you enjoyed this episode, besure to subscribe to AHLA's
Speaking of Health Law whereveryou get your podcasts.
To learn more about AHLA and theeducational resources available
to the health law community,visit americanhealthlaw.org.
Thank you.
SPEAKER_02 (00:27):
Welcome, and we hope you enjoy today's AHLA podcast
on the intersection of physicianemployment and practice group
contracts in alternative disputeresolutions.
specifically AHLA's DisputeResolution Services.
With us today is Christopher C.
Murray Esquire, a partner withOgletree Deacons in its
(00:48):
Indianapolis office, and LindaA.
Mickler Esquire, arbitrator andmediator, a member of the
arbitration and mediation panelsfor the Dispute Resolution
Services and chair of theDispute Resolution Services
Dispute Review Board.
At the beginning, I will saythere are many practice areas
(01:10):
for an attorney in healthcare.
Generally, we could say thereare healthcare transactions,
healthcare litigation, andregulatory healthcare
compliance.
Disputes impede the closecooperation needed to deliver
quality healthcare arbitrationand It can be used as a
resolution tool and isparticularly well suited for
(01:33):
disputes involving healthcarebecause of the complex nature of
the healthcare marketplace andits highly regulated nature.
What can your healthcare entitydo to ensure that a dispute is
resolved and it's private ratherthan having a public litigation
record?
This is what we're going to bediscussing today, Chris and I,
and I want to start off bysaying AHLA maintains a national
(01:57):
roster of arbitrators,mediators, and hearing officers
with health law expertise.
Chris, your firm has had a lotof experience with employment
litigation and arbitration.
What have you learned about thestrengths and weaknesses of
both?
SPEAKER_01 (02:14):
Well, good afternoon, Linda, and thank you
for the opportunity to join youtoday to discuss employment
litigation or arbitration,actually, as an alternative to
litigation.
I think it might be helpful forthose listening to review kind
of quickly what arbitration isfor those who aren't familiar
(02:36):
with it.
So arbitration, and inparticular, employment
arbitration, is a way forparties, employers, and
employees to attempt to resolvetheir legal disputes without
having to go to court.
The way that works typically isthat the employers have an
(02:56):
arbitration policy orarbitration agreement with their
employees that provides thatboth sides will waive their
right to go to court and waivetheir right to a jury trial and
instead will attempt to resolveany disputes between them
through arbitration or otheralternative dispute resolution
(03:18):
processes.
So the way arbitration worksthen is that when a dispute
arises between an employer andan employee, they select a
neutral third party, that wouldbe the arbitrator, to resolve
the dispute.
And then the arbitratorfunctions very much like a
judge.
The parties would have the rightto conduct discovery or present
(03:41):
evidence and witnesses like at atrial, but the whole thing is
more informal.
Often, as you mentioned, moreprivate.
For example, the hearing, anarbitration hearing, would
typically take place in aprivate conference room rather
than a public courtroom.
But the arbitrator still has thepower to award all of the same
(04:03):
remedies that a court wouldhave, including monetary damages
or injunctive relief.
So the outcome of thearbitration would be similar to
what could be obtained throughtrial.
So the arbitration agreementsthat employers use typically set
up a procedure for the partiesto follow including a procedure
(04:28):
for selecting an arbitrator.
And then often they mightidentify an administrator, an
arbitration administrator, suchas the American Health Law
Association's Dispute ResolutionService.
But that administrator thenwould assist the parties in
conducting the arbitration.
So that's kind of a quickoverview of what arbitration is.
(04:50):
And you had...
You had asked about kind of thestrengths and weaknesses or pros
and cons of arbitration.
And I would say from theemployer's perspective, there
are a number of benefits thatparties often see employers in
(05:10):
particular from arbitration.
Arbitration tends to be quickerthan litigation.
I think I've seen some studiesthat show that arbitration and
employment arbitration tends tolasts about half as long as a
typical case in federal court.
Sometimes the costs can belower, but I think we're going
(05:32):
to talk a little bit more aboutthat later.
There's an important caveat tothat.
Arbitration isn't always cheaperthan litigation.
But some of the other advantagesthat employers see to
arbitration are no risk ofrunaway jury awards, like you
can sometimes see in courtcases.
The whole process is a littlemore informal than in court.
(05:56):
So that allows the parties maybeto, for example, to have more
flexible deadlines or havegreater say in when their
hearings will be scheduled thanthey would have in court.
There tends to be a little moreconfidentiality than court
because it's not in the publiccourt system.
And of course, the arbitratorstend to have employment law
expertise, which can be a bigbenefit to the parties.
(06:20):
That said, there are some thingsthat employers should be aware
of that are downsides orpotential negatives to
arbitration.
I know we're gonna talk, as Imentioned, we're gonna talk a
little bit more about the costs,I think.
That can be a pro and a con.
There are, for example, otherfees that employers are
(06:41):
responsible for in arbitrationthat they don't have in court
cases.
Employers are responsible forpaying the arbitrator's fees.
for paying the arbitrationadministration fees as well.
So that can drive up the cost.
Some employers find that theyare less likely to get summary
judgment in arbitration thanthey might in court.
(07:04):
So there may be more hearings inarbitration than there are jury
trials in court.
And then there are often limitedappellate rights.
I know we'll talk a bit aboutmore about that later too.
So those are some of the risks.
And the last thing I wanted tomention, and this tends to be
one of the things that attractsemployers most, is that in
(07:26):
arbitration, you can have aclass action waiver because
arbitration is intended to beconducted on an individual
basis.
So those are some of the prosand cons that I've seen, Linda.
SPEAKER_02 (07:38):
Thank you.
One of the questions that I willget is, do parties really need
to use an administrator to agreeon an arbitrator?
Could they also select anarbitrator by themselves?
I'm going to give my opinion onthat.
And then Chris, I'm going to askyou about yours too.
I think that it's important toremember that both the employer
(07:59):
and the employee want anenforceable award should the
proceeding get to an award.
Remember too, that arbitrationsalso settle.
And that in an arbitration, yourarbitrator is not going to be
able to speak with the partiesindividually.
We've already brought up thatwithout the publicity that
(08:23):
litigation can have, that's anadvantage of mediation and
arbitration.
And in answer to the questionabout an administrator,
sometimes the parties will agreeif they do it early on.
to select a mediator and do amediation and wait to go into
arbitration and see whathappens.
Other times that you can do amediation at any time during an
(08:47):
arbitration and it's importantto note that.
Chris, do you have any comments?
SPEAKER_01 (08:52):
Yeah, I'm glad you mentioned that Linda.
We often see in arbitrationagreements that there will be an
option for the parties to agreeto an arbitrator by themselves
without using an administrator.
Typically, for example, anagreement might say that after
somebody gives notice thatthey're going to pursue an
(09:14):
arbitration, the parties willhave maybe 30 days or 45 days to
see if they can agree on anarbitrator between themselves.
And then if they're unable to dothat, then at that point, they
would turn to an administratorfor assistance like AHLA and
then use the administratorselection process.
(09:36):
So I definitely see that as acommon option.
And one big benefit to that foremployers, if that happens to
work out, is that it can reducethe cost somewhat of arbitration
if they follow that option.
Would you see any downsides?
I'm just curious from yourperspective as an arbitrator,
(09:56):
whether you would see anypotential downsides to the
parties to selecting anarbitrator directly between
themselves?
SPEAKER_02 (10:08):
An arbitrator has to maintain and make sure that an
award is enforceable.
So I don't...
Yes, there are...
roles out there where a partycan do that.
But I would encourage anadministrator for an
arbitration.
A mediation, I think, is adifferent matter, and it
depends.
(10:28):
It's very fact-specific.
You want somebody who is goingto be, well, we're going to get
into a little bit about thediscussion about mediators and
the qualities that you want tolook for.
However, usually by the time theparties in employment or
(10:49):
healthcare-related litigationget to where they're talking
arbitration, they pretty much,by and large, cemented their
positions.
So you talked about the lowercost, but with a caveat.
Let's talk about that a littlebit.
We've mentioned the cost isArbitration is less expensive
(11:13):
for employers than litigation.
Mediation also would be.
But let's talk a little bitabout what you look at and
trying to decide which way togo.
You've already mentioned the norunaway jury verdicts.
The more flexible deadlineswould be another one.
Any other thoughts?
SPEAKER_01 (11:33):
Yeah, so I think...
I think it's important foremployers to know what they're
getting into when they adoptarbitration.
And I think sometimes there's amisconception that an individual
arbitration case will be cheaperthan litigation for an employer.
And that is not necessarily thecase.
(11:56):
So if an employer is justlooking at costs on a
case-by-case basis, they may notsee that those costs are cheaper
in arbitration.
However, what we also see andwhat we hear, and some of this
is anecdotal from companies thatadopt arbitration programs, is
(12:19):
that their costs in theaggregate go down.
And I think what I mean by thatis the overall amount that they
spend dealing with employmentdisputes, which would include
not only their own attorney'sfees, but also, you know,
amounts they pay out to resolvethese matters or settlement or
(12:40):
so forth, or in, you know, kindof worst case scenario, the
amounts that they pay asdamages, if they have adverse
decisions against them, thatwhen you look at those costs in
the aggregate, employers witharbitration programs do see
their costs go down.
And I think, you know, I thinkthere's, there are some
explanations of, differentexplanations for why that is.
(13:00):
One is that settlement amountstend to be a bit lower in
arbitration than in litigation.
And that goes back to what youmentioned a moment ago, Linda,
was about the risk of runawayjury verdicts in court cases.
Well, because there isn't thatrisk in arbitration, that's one
(13:21):
theory for why the settlementamounts tend to be, on average,
a little bit lower inarbitration.
And then there's also thebenefit that cases are resolved
at an earlier stage when youhave an arbitration program,
especially if it includesmediation, as you've mentioned
mediation being related toarbitration.
(13:44):
So because the cases can beresolved more quickly in
arbitration or with arbitrationprograms, that can be another
reason for the overall costsbeing lower.
So I would just, as a generalpoint, I would just caution
employers thinking aboutadopting arbitration programs to
understand that it's not goingto be on a case-by-case basis
(14:08):
that it may be cost savings.
It's going to be more importantto look at the costs in the
aggregate.
SPEAKER_02 (14:16):
One advantage of an arbitration or a mediation is
the confidentiality.
of the proceedings and asettlement that includes, if it
is done in an arbitration or inmediation, that includes the
wording that both parties agreeupon to maintain the
confidentiality.
And from a mediator's viewpoint,a mediator is gonna insist in
(14:43):
the mediation agreement that itinclude, that the parties
understand that everybody isgonna be bound the mediator
themselves also have a duty tokeep things confidential.
The other item you can expect ina mediation is that a mediator
(15:07):
is always going to want to seeexamples from both parties of
what they want in a mediationfor a settlement, because it's
not just monetary.
It can be other things as well.
Yes, usually monetary, butespecially in an employment
setting or in a healthcaresetting, there are other factors
(15:27):
that can come into play that maymake the party say, okay, we'll
settle on that basis.
Chris, do you have anything youwant to add to that?
SPEAKER_01 (15:36):
Well, yeah, I think mediation can be a huge benefit
to any sort of arbitration orADR program for all the reasons
that you mentioned.
And So I guess I would justmention for employers who are
thinking about adopting anarbitration program, they should
be aware that they can includemediation as a component to
(15:58):
that.
Now, there are some, they'llwant to consult with their
counsel because there are somequestions about whether
mediation prerequisites.
If you have an arbitrationagreement, for example, that
says the parties have to go tomediation before they can
actually go to arbitration,that's something employers
should consult with theircounsel about whether that type
(16:20):
of requirement would beenforceable in their
jurisdiction.
But I would say that But theemployers that I work with that
have mediation built into theirarbitration programs, they tend
to be very happy with thatbecause it allows the parties or
maybe compels the parties tojust start having those
(16:41):
discussions earlier in theprocess about resolving the
matter.
And oftentimes they'resuccessful and as a result can
avoid a lot of headache and costdown the road.
SPEAKER_02 (16:53):
some of the things that i would recommend for
employers and employees tomaximize the benefits of both
the mediation and thearbitration talk with the
opposing counsel early and withmediators also early and go to
mediation early i think we allknow that cost of a proceeding
(17:14):
can be a prohibition to actuallysettling if we go too far out in
the process.
And the idea is to finish thedispute, whatever it might be,
by everybody involved earlierrather than later to avoid the
(17:37):
possibility that you may not besettling because of the costs
that have been expended.
some qualities in mediation forthe mediator, the ability to
discuss equally with both sides,trust by the parties of the
mediator, empathy andobjectivity, but also the
(17:59):
ability to see the matter as theparties see it subjectively, as
they will see it subjectively.
They will be up against thewalls And that's also true in
arbitration.
They'll have their positions andthey're gonna stick with them.
The mediator also has to havethe ability to look at both
(18:21):
sides and the case law and tryto figure out what the sticking
point is in each side's case.
And frankly, use it to theadvantage for a settlement.
Talk to the parties about that.
And as I said before, mediatorsalso have the ability to work
with something other than justmonetary elements.
(18:47):
Chris, how common is mandatoryemployment arbitration?
Are you seeing any trends interms of employers adopting or
discontinuing employmentarbitration programs?
SPEAKER_01 (18:58):
Yeah, I'd say it's very common and increasingly
common.
So our firm...
Last year, Ogletree Deacons, wedid conduct a survey of our
clients.
And as part of that survey, weasked a number of questions
about the use of arbitration.
And that survey resulted in someinteresting data, I thought.
(19:24):
Overall, I think it was maybeabout 1,300 employers that
participated in the survey.
And one of the things we saw isthat if you look at all
employers generally, and thiswould be employers from small
employers with fewer than 1,000employees to very large
(19:44):
employers with over 20,000employees, on average, about
almost 44% of our respondentsare currently using arbitration.
And then on top of that, there'ssignificant additional
percentage i think it was about13 on top of that responded that
(20:05):
they are don't currently usearbitration but are considering
implementing it um and that'swhen you look at all employers
together when you lookspecifically at larger employers
we found that even more of themare using arbitration so for
employers that have 20 000 ormore employees 50, almost 56% of
(20:26):
our respondents currently havearbitration programs and another
9% are looking at it.
So I'd say it's very common,especially as I mentioned among
larger employers.
And I think it's continuing togrow.
I'd be curious to hear whatyou're seeing and from the
perspective of an arbitrator,whether you have a sense of, you
(20:50):
know, more employers adoptingarbitration or whether that's
kind of visible to you from yourposition as an arbitrator?
I
SPEAKER_02 (21:00):
think arbitration generally is increasing and so
is mediation.
And it's for all the reasonsthat both of us have discussed.
You've mentioned the classaction waiver.
Employment arbitration isintended to be a one-on-one.
So do you have anything you wantto add as far as the class
(21:22):
action waiver?
Or perhaps we should discuss alittle bit about how that is
handled from an employerviewpoint?
SPEAKER_01 (21:29):
Yeah.
Yeah.
So I do think that's probablyone of the things that has
really been driving theincreased use of arbitration by
employers.
So back in 2018, the SupremeCourt definitively decided that
that employers can use classaction waivers in their
arbitration agreements.
(21:50):
It had been an open question upto that point.
And so since 2018, I thinkthat's even increased the rate
at which employers are adoptingarbitration.
The class action waiver, it's avery appealing aspect of
(22:10):
arbitration for employers.
Like I said, the whole theory ofarbitration is that it should be
hopefully quicker and lessformal and possibly less
expensive.
And individual arbitration is akey part of that.
And that's one of the things theSupreme Court has noted about
(22:31):
arbitration.
When it's on a one-on-one basis,it allows the parties to focus
on the merits of the case and,if necessary, get to a hearing
on those merits more quicklythan on a class basis.
Linda, as you probably haveseen, there is, however, a
(22:51):
phenomenon now called massarbitration that has kind of
developed in recent years.
And I'm wondering if you've seenevidence know any increase in
activity with mass arbitrationsfrom from your perspective as an
arbitrator
SPEAKER_02 (23:06):
yes there is um and let me first differentiate
between class actions and massarbitrations mass arbitrations
are within the contract there iswording that says they're going
to go to arbitration and they'reall put into arbitration pretty
(23:26):
much I don't want to saytogether, but pretty much at the
same time.
In that type of situation, youhave a process arbitrator that
will determine how the mattersare going to be handled.
You have the arbitration, andthen you have a situation where
it's sort of like the back end,the arbitration, and then the
(23:48):
front end, what other issueshave to be addressed.
I do think that it's appropriatein certain situations Do you,
have you seen where mostemployers will use arbitration
with only certain types ofemployees or with all of them?
SPEAKER_01 (24:05):
Well, in my experience, there hasn't, you
know, I have not seen employerslimiting arbitration to just
certain types of employees.
And I'm not aware of really anybenefit to doing that.
I will add one caveat there, andthat is there is a category of
employees that kind of generallyreferred to as interstate
(24:30):
transportation workers.
And those would be like truckdrivers who are delivering
product interstate or maybewarehouse loaders who are
loading and unloading suchproduct.
Those employees, which areprobably not really...
I would assume probably not...
(24:52):
probably not a concern for a lotof healthcare employers, but
those types of employees mayneed to be treated differently
just because the law that coversarbitration, the federal
arbitration act carves out thoseemployees.
They're not subject to thefederal arbitration act.
So sometimes they needed to be,they need to be treated
differently based on whateverstate law is applicable to them.
(25:16):
But outside of that issue youknow, the employers I work with
tend to just use arbitrationbroadly for all employees.
SPEAKER_02 (25:24):
Interesting.
SPEAKER_01 (25:26):
Yeah.
And have you, I'm curious, haveyou seen, you know, especially
with maybe the healthcareindustry, have you seen
employers, you know, handlearbitration differently?
No, there are
SPEAKER_02 (25:41):
a variety of things that can go into a healthcare
arbitration case.
And you can even see the samething in the same case as
concerns the physicians in thehospital.
Some examples, healthcareorganizations sell, buy, merge
with other entities and otherpractices.
They collaborate betweenhealthcare providers to ensure
(26:03):
legal and financial interest,leasing property for facilities,
service agreements, not just astandard employment contract.
An employment contract, goingback quite a few years, was a
rather simple document.
That's not the case today.
It will talk about a physicianhaving duties in a certain
(26:26):
situation and then having othersas well, depending upon the
agreements that the hospital haswith the physician practice.
Vendor agreements, serviceagreements, employment
agreements, they're all meant toprotect a client's interest.
Physicians leaving for anotherhospital can also cause issues
(26:47):
and arbitrations, and you willsee that.
Other possible issues that willcreep up, compliance audits,
investigations, enforcementactions, and those are obviously
involving regulatory andcompliance audits and appeals,
Medicare, Medicaid.
You've mentioned one of theacts, the Administrative
(27:10):
Procedure Act, governmentreimbursement questions,
payer-provider disputes.
All sounds a little bit dauntingto someone who might be new at
it, but somebody who's seasonedwill see those type of things
regularly.
So getting cases intoarbitration is the starting
(27:32):
point.
The benefit comes only if theprocess is managed properly.
What do in-house and firmcounsel need to do to make
employment arbitrationsuccessful?
Chris, you want to tackle that?
SPEAKER_01 (27:47):
Yeah, sure.
So I think, I think first andforemost, uh, the, the, for the
employer, uh, or I guess themost important consideration at
the outset is they want to makesure that they've got an
arbitration agreement that'senforceable.
If it's not enforceable, they'regoing to find themselves
involved in all sorts ofsatellite litigation, litigating
(28:08):
in the court, whether it's anenforceable agreement or
litigating that issue before thearbitrator.
And that can all become anexpensive distraction.
So to get the benefits, youknow, the benefits, especially
of arbitration, quickerresolution and cheaper
resolution to get those benefitsfrom arbitration.
(28:30):
An employer is going to want tomake sure that their agreement
is enforceable.
And to do that, they shouldprobably have it reviewed
relatively regularly every yearor so, because this is an area
where there are a lot of changesin the law.
There's changes, whether it's inthe case law, or in federal or
(28:51):
in regulatory law, states areregularly trying to litigate
arbitration issues.
So it's good to have agreementsreviewed somewhat regularly to
ensure they're up to date.
On the issue of enforceability,employers are also wanting to
give some attention to just howthe agreement is presented to
(29:13):
their applicants and employees.
That's another big question forenforceability.
So especially if they'readopting a new program, they'll
want to think about how it'sgoing to be distributed to new
employees and to currentemployees.
Will it be, for example, will itbe distributed as part of a job
application or will it bedistributed as part of an offer,
(29:35):
a job offer, or as part oforientation materials or, you
know, as part of the materialspolicies, for example, uh, that
are signed during onboarding.
Um, another question would belike, how do you deal with
current employees?
If you're, if you're adopting anew program and how will it be
distributed to those people?
(29:56):
Um, and how to do thateffectively and in an
enforceable way.
Um, another thing that I thinkemployers will want to think
about is just how is recordkeeping, uh, how will these
arbitration agreements, oncethey are executed, be retained
for future reference?
Because it's not uncommon tohave employees who are with a
(30:20):
company or with an employer formany, many years after they've
onboarded.
And The employer is going toneed to be able to, you know, if
a dispute arises five or 10years down the road, the
employer is going to need to beable to access that agreement.
And I'll mention there just, youknow, one kind of example of one
horror story that we had at onepoint.
(30:41):
One of our clients had used athird party to retain its
employment contract.
It's documentation and thenswitch providers at some point
and provided copies ofeverything they had to the
employer when it was switchingproviders.
And it turned out that many ofthe arbitration agreements,
which were two-sided documents,had only been scanned once.
(31:06):
on single-sided scans.
So they had all of thesearbitration agreements that they
were missing basically half ofbecause they were only half
scans.
So it's little things, littledetails like that, that the
employers want to pay attentionto, to ensure that they have an
enforceable agreement.
So Lynn, I'm curious from yourperspective as an arbitrator,
(31:29):
what are some of the thingsyou'd recommend employers do so
that they can get the most outof arbitration and make it as
effective as possible.
SPEAKER_02 (31:37):
And I'm going to expand on what you just said,
because it certainly is a whoopsstory, as well as a horror
story.
It's not just the agreements.
It is the papers that you need.
Keep track of the informationthat you need to prove your
case.
Obviously, with litigation, youput a litigation hold on.
(32:00):
With arbitration, do the samething.
Let everybody know.
The same could be true withmediation, depending upon what
it is that you are mediating.
Remember, an arbitrator cannotspeak individually with the
party.
Employers and employee counselcan.
(32:21):
Keep track of the informationyour client has.
Try to avoid extensive discoverydisputes.
The procedure of arbitration ormediation is not meant to be,
let's just do as much discoveryas we can.
Yes, discovery will be limited.
It will be limited with severaldifferent parameters.
(32:45):
And it is something that thearbitrator will address with the
parties during the schedulingconference or when a dispute
arises.
SPEAKER_01 (32:56):
Yeah, Linda, one of the things that I had mentioned
is during the pros and cons ofarbitration was that typically,
appellate rights are morelimited in arbitration.
I'll expand on that just brieflyfor those who are new to
arbitration.
And that is, unlike in a courtcase, if one party loses, they
have a right to appeal to thecourt of appeals.
(33:17):
In arbitration, the arbitratoris usually given the authority
to issue a final binding award.
And then there really is no wayto appeal often from an
arbitration award.
However, that's not always thecase, and the parties and
employers can change that whenthey're preparing their
arbitration programs.
(33:39):
And I'm just curious if youcould maybe describe a little
bit about what the appealprocess is that's available
under the AHLA's rules andprocedures, because I think
that's kind of a unique process.
SPEAKER_02 (33:53):
AHLAA does have an appeal process which will
hopefully correct any issues andprevent going into the courts
and do so faster than thecourts, at least in theory.
As Chris mentioned, under theFederal Arbitration Act and the
state arbitration statutes,courts can vacate an award only
upon evidence of misconduct orbias or if the arbitrator
(34:16):
exceeded the powers granted bythe parties.
An award containing factual orlegal errors will be confirmed.
Such awards are rare, but nodispute resolution system is
perfect.
AHLA's Rules of Procedure forArbitration Appeals provides for
a panel of three healthcarearbitrators, which may review an
(34:39):
award under the same standardsapplied by an intermediate court
of appeals to a trial courtverdict.
The award may not be remanded tothe original arbitrator an
appellant panel offers subjectmatter expertise and speed the
panel must issue an award within30 days after an oral argument
(35:02):
or after briefs are submitted ifthere is no argument this is
quick and it's meant to be likeother arbitration awards and
appellate panels decisions setsno precedent good or bad and
that's important to noteSpeaking of employment
arbitration and the procedure,since we've talked a little bit
(35:23):
about the appeals procedure, Ijust want to point out that with
the employment arbitration andother types of arbitration that
AHLA handles, they are reviewedand the AHLA rules of procedure
for employment arbitration, themost recent version is effective
(35:45):
February 6th, 2025.
It's possible, although Iactually have not handled one in
the healthcare industry, it'spossible to streamline the
process and do a deskarbitration where it's
appropriate if the partiesagree.
Another point is that if anemployee voluntarily files a
(36:05):
claim under a mandatoryarbitration clause, the employer
is responsible for paying thebasic filing fee for a list of
five candidates.
Let me go back for a minute andtalk about the desk arbitration.
One instance where that can beused, and it depends often on
how the state is handling the NoSurprises Act.
(36:27):
There are some states that haveprocedures set up and desk
arbitrations, for instance, willbe used.
In more complex situationsinvolving the hospital, the
physicians, the billing, I havenot seen that.
And I think it's for the samereason, Chris, that you have
(36:47):
broken down what you see withemployment arbitrations.
From your perspective as anemployment attorney, what do you
think?
Do you continue to see growth inthe use of arbitration?
SPEAKER_01 (37:03):
Yeah, I think we will continue to see that.
You know, there's oftencriticism of arbitration.
For example, back in also the2018 time period, there was some
negative publicity forarbitration around the Me Too
(37:26):
movement, for example.
And that was because there wereseveral leading figures in that
movement, Gretchen Carlson inparticular, whose story was a
big part of that movement.
She happened to have anarbitration agreement with her
employer.
And so there was some negativeattention to arbitration at that
(37:47):
time.
So one thing I do want tomention, and just to be clear,
is I have never seen anyconnection between the use of
arbitration and that encouragingor allowing or condoning any
sort of improper conduct in theworkplace.
I've certainly never seen that.
(38:08):
And I don't think I've certainlynever seen any studies
suggesting that.
So there was some negativepublicity around that time.
But despite some of thecriticisms, all of the reasons
we've talked about for adoptingarbitration, I think, continue
(38:30):
to be attractive to a lot ofemployers.
And I think the rate at whichemployers are moving towards
arbitration, at least from whatI have seen, has only...
continue to increase, actually.
So I think arbitration, I thinkit will continue to grow.
As I mentioned, based on thosesurvey results, there are a lot
(38:56):
of employers using it.
Now, Linda, you had mentionedmass arbitrations, and we talked
about that a little bit earlier,and you described it.
So I would say that that is kindof a current developing...
a new development in arbitrationthat has and cause employers to
(39:17):
kind of think, well, do I wantto go down this route if I might
end up being exposed to a massarbitration?
And just to kind of underscorewhat the risks are from an
employer's perspective, thesemass arbitrations are when a
plaintiff's attorney, anemployee side attorney,
basically recruits a number ofclaimants to file claims all
(39:41):
basically all at the same timeand often identical complaints.
It could be just a handful ofclaims that are filed, but in
the worst case scenario, itcould be hundreds, for example,
in like a wage an hour type ofsituation where somebody is
challenging a wage an hourpolicy.
The challenge that presents foremployers is that as we've
(40:02):
talked about, employers areresponsible for the arbitration
costs, the arbitrator's fees andthe administration fees.
And so when a mass arbitrationis filed, the employer is
suddenly on the hook forarbitration at filing fees and
related fees that can be veryexpensive.
So I will say that, at least inmy experience, and I'm not sure
(40:28):
what you've seen, Linda, but inmy experience, I'm not seeing a
lot of mass arbitrations.
They are challenging also fromthe plaintiff's attorney side.
I mean, they are big cases thatrequire a lot of time and
investment of resources from theplaintiff's side.
So we haven't seen as many as wethought we might see.
(40:49):
That said, I will say that if anemployer gets hit by one, it can
be challenging.
But Linda, I'm curious if you'reseeing very many mass
arbitrations.
SPEAKER_02 (40:58):
I think there's a future where you may see more of
those.
It's going to depend how itdevelops.
And yes, we have seen thembefore.
I think it's important toremember that as an arbitrator
and mediator, both thearbitrator and the mediator have
to be neutral.
And that is extremely important.
(41:18):
AHLA does have a process wherethey've got a panel, a dispute
review panel.
And if the parties...
or counsel have an issue withthe proceeding that is
occurring, they do have and canfile a petition for removal.
So that doesn't end up in thecourts either.
(41:39):
It is reviewed.
It is usually reviewed withoutthe arbitrator or arbitrators
ever knowing that it has beenfiled.
And a decision and opinion isprovided by the dispute review
panel.
And Again, the whole thing isthe idea of neutrality, ethics,
(42:05):
the roles, and keeping thingsprivate.
Our justice system is lengthy,it's long, it's not private.
It's important, and I think thisis talking about the future,
it's important for ourarbitration system to be one
that the parties can afford andcan complete in a relatively
short timeframe.
(42:26):
And counsel, and the arbitrationadministrator and the arbitrator
need to keep that in mind.
I see the use of arbitration andmediation increasing if we do
that.
So with that said, do you haveany other items that you want to
discuss, Chris?
I want to thank you for thechance of doing this discussion
(42:50):
today.
I think that It has beeninformative.
And yes, I am wrapping thingsup.
So do you have anything
SPEAKER_01 (43:01):
you want to add?
No, no, just thank you.
Thanks a lot for the chance tovisit with you this afternoon
about arbitration.
I think it's a reallyinteresting area.
And I think it already ischanging.
you know, the world ofemployment litigation.
And I think it will continue todo so and impact how we resolve
(43:25):
claims.
And I, you know, I'm hopeful,I'm hopeful that mediation in
particular, mediation andarbitration will ultimately lead
to a, I guess, an overallprocess where employment
disputes can be resolved muchmore quickly and effectively and
for the benefit of bothemployees and employers.
(43:46):
I don't think it benefitsemployees either to have to wait
years for disputes to beresolved.
So I think there's a lot ofpotential there.
But thanks a lot for theopportunity to visit with you
this afternoon on these topics.
It's been a pleasure.
SPEAKER_02 (44:01):
And it has been a pleasure too.
Thank you very much.
SPEAKER_00 (44:10):
Thank you for listening.
If you enjoyed this episode, besure to subscribe to AHLA's
Speaking of Health Law whereveryou get your podcasts.
To learn more about AHLA and theeducational resources available
to the health law community,visit americanhealthlaw.org.
Popular Podcasts
Bookmarked by Reese's Book Club
Welcome to Bookmarked by Reese’s Book Club — the podcast where great stories, bold women, and irresistible conversations collide! Hosted by award-winning journalist Danielle Robay, each week new episodes balance thoughtful literary insight with the fervor of buzzy book trends, pop culture and more. Bookmarked brings together celebrities, tastemakers, influencers and authors from Reese's Book Club and beyond to share stories that transcend the page. Pull up a chair. You’re not just listening — you’re part of the conversation.
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com