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October 31, 2022

Chair’s Column: PLI, IG Leadership Training Opportunities, Arbitration Practice Tips from AAA, and Update on Challenges

By Kathy Poppitt

Let’s start with a huge round of applause for co-chairs Elizabeth Green and Jessica Gustafson, their planning committee, and the ABA staff for a wonderful and informative Physicians Legal Issues: Healthcare Innovation and Delivery Conference in Chicago. It was back in person this year, well attended, and full of insightful presentations. There really is nothing like getting together in person to learn and meet and greet. Thanks to you all and to everyone who attended. Next up are the Washington Health Law Summit and the National Managed Care Institute, back to back in Washington, DC, in December. I look forward to seeing all of you there.

For those of you involved in Interest Group (IG) leadership, I want to highlight a series of informal lunch presentations scheduled by the IG Leadership Executive Team, led by the incomparable Kathy DeBruhl. Kathy and her team have organized a series of video lunch meetings designed to give IG leaders all the information they need to have a successful year. Some of the topics include tips for drafting an action plan, how to engage your leaders and members, and steps for creating a podcast. I have heard great feedback on how informative these meetings have been so far. Here is a link to upcoming meetings.

Arbitration Practice Tips from AAA

Below is a short Q & A with Michelle Skipper of American Arbitration Association (AAA) with some useful practice tips. Many healthcare contracts, such as those between providers and insurance companies, require that disputes between the parties be resolved by alternative dispute resolution (ADR) processes such as mediation and/or arbitration rather than in court. Mediation and arbitration proceedings are significantly different from court litigation in that they are designed to be quicker and more efficient than litigation, have limited discovery, are often difficult to appeal, and are generally conducted under a confidentiality agreement. Michelle, who is also an active member of the Health Law Section, provides insight on navigating a successful ADR proceeding:

Please introduce yourself and describe your position at AAA.

My name is Michelle Skipper and I serve as the vice president for the AAA commercial division. In my role, I administer large, complex arbitration and mediations. In addition, I recruit arbitrators and mediators to join the AAA national panel. Lastly, I’m the national lead for healthcare and life sciences for AAA.

What tips would you give attorneys to have a successful arbitration?

Clients/In-house counsel should select outside counsel who understand and are familiar with arbitration proceedings. Counsel should understand the ADR provision in any underlying contracts or agreements as this is what will be followed and controlling. Where the ADR provision is silent as to how/when/where an arbitration should proceed, then counsel needs to understand and be familiar with the arbitration rules that do apply and will be followed.

What do you recommend attorneys not do in order to have a successful arbitration?

Attorneys involved in arbitration should realize that they are in arbitration and not court litigation. This means they need to leave their litigation hat at home as the proceedings and expectations for arbitration are different. They should know the arbitration rules their matter is proceeding under and work collaboratively with opposing counsel in complying with those rules.

Any other thoughts?

When parties/counsel determine they want to include an ADR provision in any type of agreement, they should share the provision with counsel who is experienced in ADR and ask for feedback. These provisions can have great impact on the effectiveness and efficiency of resolving disputes.

Update on Ongoing Challenges for You and Me

As I mentioned in my last column, I am challenging each of you and myself to take some chances in HLS involvement/leadership, your career, and your life. I challenged each of us to do something or several things outside our comfort zones. I mentioned that, as a step outside my comfort zone, in September I planned to take the Amtrak sleeper train from Austin to Chicago to attend the PLI program and would post about that experience. I am glad to report that the trip mostly went to plan and allowed me to do and see some things that I would not normally. One interesting moment was that after being stuck still on the tracks for over an hour due to a broken train, it was announced that we would be chugging along as soon as the now-mended train backed up its length of three miles to pick up its conductor, who had gone to the back of the train seeing to the repairs. I was astounded by both the fact that the train was three miles long and that it could back up that far.

I want to reiterate two challenges to each of you:

  1. Enlist at least one more person you know to join as a member of the HLS. My goal for the year is to enlist at least five new members. Our firms and colleagues are often easy people to connect with for HLS membership. Let us know when you are successful and you will be eligible for an award; and
  2. Attend at least one in-person HLS program this year. The HLS has several wonderful programs every year and we hope that you will attend at least one of them.

Please know that the HLS leadership is here to facilitate your involvement in the Section and that you can call on us at any time. I look forward to working with and talking to each of you over the next bar year and look forward to any feedback or suggestions you have.

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