Alternative dispute resolution (ADR) is an important part of the litigation landscape everywhere, including Arizona. Andrew Turk, with the Phoenix office of Clark Hill P.L.C., talks about ADR and its many applications in this interview.
Turk explains that ADR occurs when parties to a dispute attempt to resolve their dispute without going through a court trial. There are several types of ADR. One of them is arbitration, which resembles a trial but has relaxed standards for the admission of evidence and is conducted by someone other than a judge. There might be several arbitrators involved. Arbitrators may be lawyers or may be members of the business or profession involved in the arbitration, such as architects or people in the construction industry, to give two examples. Arbitration is often binding.
Mediation, another form of ADR, is not binding and is carried out by a neutral person who has no interest in the dispute, often a lawyer or retired judge. The mediator functions as a go-between, trying to help the parties resolve the dispute. Turk points out that the use of mediation does not foreclose the possibility of arbitration or litigation. “The mediator doesn’t really have the power to make anybody do anything.” In Arizona, Turk says, parties have to participate in some kind of ADR before a case can go to trial. There are several possibilities, including a settlement conference with a settlement judge. Whatever option the parties choose, they must make a good faith effort to settle the case before going to trial.
Mediation programs come in many varieties, Turk says. There are organizations like the American Arbitration Association that offer mediation services. There are also many retired judges and attorneys who provide mediation services as well. Sometimes, parties to a dispute have a contract providing that they must explore mediation before resorting to litigation. Sometimes, parties just agree to mediation. Or they may get into mediation because of litigation. In any event, the parties to the dispute hire a third party to attempt to resolve the dispute. The case is typically presented to the mediator through a written document. After an explanatory session, the mediator will meet separately with each side, playing the devil’s advocate and trying to get everyone to see all sides of the dispute with an objective of resolving it. Mediations can be very brief or very long, depending on the parties.
Turk points out that good recordkeeping is important in any endeavor, and it can be critical in dispute resolution. Nursing home litigation is an area where the quality of the records that were kept can define the litigation. “There’s an adage in the medical community that if it’s not written down, it’s not done.” A lawyer suing a nursing home will often be trying the care reflected in the records rather than what may or may not have actually been done. Turk urges his clients to do the best job they can on keeping records. If a patient sends a note to the nursing home praising a particular nurse, the note should be filed in the nurse’s records and in the patient’s file, should there later be a lawsuit claiming the nurse did a bad job.
If a nursing home gets adverse comments in a state inspection, it should not simply respond but should advocate on its own behalf. The nursing home should explain why something was done in a particular way, what is being done to correct it, and perhaps why the home believed that correction was not really needed. The point is that good records will help a business in any subsequent dispute.
Powers of attorney are important in the healthcare field. A general power of attorney permits someone to make business and financial decisions on behalf of someone else. A healthcare power of attorney is more limited, dealing only with care decisions for a patient. If you are a nursing home undertaking care of Jane Doe on behalf of her daughter Mary, you want to be sure that Mary has a general power of attorney from Jane and can thus enter into contracts in her mother’s name. This is important if the nursing home wants to get paid.
Andrew B. Turk is Senior Counsel in the Litigation and Health Care Practice Groups of Clark Hill P.L.C. in Phoenix, Arizona. He has extensive experience with health care litigation as well as with tort and insurance litigation. His practice currently emphasizes complex civil litigation, including health care, medical malpractice, and business disputes. he also has experience with wide range of commercial matters, trade secret and insurance coverage litigation and elder abuse litigation. He also frequently provides ADR services as a mediator or arbitrator. The Legal Broadcast Network is a featured network of Sequence Media Group.