• ERISA Claims Dispute Resolution
  • ERISA Vendor Fee Disputes
  • ERISA Service Disputes
• Health Care Provider Disputes
• Physician Practice Disputes
  • Practice Breakups
  • Post termination payments - Accounts Receivable
• Medical Staff Controversies
  • Specialty "turf" battles
  • Medical Staff Behavioral Controversies
  • Physician/Hospital contract controversies
    • Anesthesia
    • Radiology
    • Critical Care Medicine
    • Pathology
    • Nuclear Medicine

          What is ADR?

Alternative dispute resolution (or “ADR”) refers to a range of processes, other than litigation in court, by which the parties to a conflict can resolve or take meaningful steps towards resolving their differences.

          Within the broad range of processes and techniques generally included within the realm of ADR, certain approaches are most commonly used, and are described here.  ERISA Neutral provides the services of an independent, neutral third party (often referred to as a "neutral") in each of these settings.


Arbitration

          Arbitration is a process in which the parties to a dispute present evidence and arguments to an impartial third party neutral (the “arbitrator”) or a panel of such arbitrators who make a decision on the merits of the case.  It is similar to litigation in which a judge conducts a bench trial (i.e. without a jury), except that arbitration proceedings can be streamlined to reduce time and expenses as agreed by the parties.

          Arbitration can be binding or non-binding.  If binding, the decision (or “award”) of the arbitrator can be enforced like the judgment of a court.  In general, arbitration awards are final and not subject to appeal except in unusual circumstances.  Non-binding arbitration essentially provides guidance to the parties on how their positions would be resolved in litigation, but generally cannot be relied upon in subsequent proceedings.

          Most arbitrations arise from a provision in the parties’ contract or a requirement of law that all disputes between the parties must be resolved by arbitration. In some cases, parties not bound by a contractual arbitration requirement will agree to arbitrate after their dispute arises.  Arbitrations may be conducted under the auspices of an administrative body (such as the American Health Lawyers Association's Dispute Resolution Service, the American Arbitration Association or the National Arbitration Forum), or may be conducted directly by an arbitrator or arbitration panel chosen by the parties.


Mediation

          Mediation is a process in which an impartial, third party neutral (the “mediator”) assists the parties in attempting to reach a negotiated solution to their differences. The mediator listens to all parties and meets with them, both separately and together.  The mediator does not make a decision on the merits of the dispute, but at the parties' request may inform them of his or her evaluation of their positions as a means of creating a more realistic atmosphere for settlement.  Communications by the parties with the mediator are confidential, and generally cannot be used in any subsequent litigation if the conflict is not settled.


Med-Arb

          Med-Arb, a shorthand reference to Mediation-Arbitration, is a hybrid of these two processes.  In med-arb, the neutral attempts to mediate a settlement of the parties’ differences by way of a negotiated agreement.  If such efforts do not succeed, the neutral assumes the role of arbitrator and makes an arbitral award (binding or non-binding) based on all evidence presented by the parties.  Some neutrals and legal counsel do not accept the med-arb process, because they believe parties will not freely trust the mediator with otherwise confidential information if it might hurt their case in the subsequent arbitration phase.  Another view holds that med-arb works well as long as the arbitration, if needed, is non-binding.  It is important that the precise scope of the neutral’s duties in a med-arb proceeding be understood and agreed upon by the parties and the neutral in advance.


Fact Finding

          Parties to a dispute may require or benefit from having an independent, neutral third party review a body of evidence and make specific findings of fact. In such cases, the neutral fact-finder does not make a decision on all issues in dispute, and the findings of fact may or may not, in themselves, cause the parties to settle their legal differences.  The fact finder resolves an unknown or uncertain issue of fact that is important to the dispute without the need to conduct a trial, arbitration or mediation of all issues.

          Fact finding is often done by agreement of two parties in an effort to obtain an unbiased result at the least possible cost.  Such agreements may be built into contractual arrangements in advance, or made post-dispute as part of a continuum of ADR processes.


Hearing Officer

          A hearing officer is an independent, unbiased third party who presides over and conducts a hearing on an issue in dispute between two or more parties, but who makes no decision on the matter in dispute.  In essence, the hearing officer serves as a “private judge”, whose role is to assure all parties that the rules of due process and procedural fairness they have adopted will be properly and consistently applied.

          The hearing officer prescribes the conduct of the hearing, scheduling, logistics and the record of proceedings.  In general, he or she keeps order and advises the decision making body (often a board or hearing panel) on procedural matters.  A hearing officer is most commonly appointed pursuant to the provisions of an organization’s bylaws governing the requirements of due process that must be afforded to members who are the subject of some proposed adverse action.  Typically, the hearing officer’s role is defined by the organization’s bylaws, although statutes and case law may add requirements not expressly stated in the bylaws.


Special Master

          A special master is an officer of the court appointed to perform a quasi-judicial role in a pending case pursuant to statute, court rule or order of the court.  The services of a special master thus are not, strictly speaking, an "alternative" to litigation, but a complementary process utilized to more efficiently resolve some aspect of the parties' dispute. 

          Duties of a special master can include hearing and resolving discovery matters, investigating and reporting on factual issues, implementing remedies requiring protracted or complex implementation, and monitoring compliance with settlement agreements and court orders.  Special masters are typically appointed on the basis of their specialized knowledge or experience concerning the subject matter in dispute.