When Alternative Dispute Resolution is Helpful
We represent our healthcare and life sciences clients through all stages of dispute resolution.
Oftentimes, clients may think or feel they have a claim, yet be unprepared for the dangers, costs, emotional expense, and sheer length of pursuing a legal claim through the courts.
Most often, however, these claims and disputes get resolved before they reach the judge or jury.
Our experience in court teaches us ways to reduce potential legal costs down the road by inserting appropriate contract provisions where possible at the outset. We also know how to negotiate from strength, and how to interpret contracts to evaluate our clients’ ability to extricate themselves from perilous conflicts.
For example, we can analyze and review non-competition, non-solicitation, and trade secrets clauses to ascertain the potential risk of exposure and whether clients can profitably leave existing arrangements in light of potential liabilities.
Often, disputes arise between two people who once started the venture together, as friends.
Healthcare Arbitration
Healthcare arbitration can be used to resolve disputes such as:
- Business disputes, such as those that arise during Mergers & Acquisitions (M&A) of healthcare practices.
- Contract disputes between healthcare organizations and vendors.
- Disputes involving anti-kickback and fee-splitting issues.
- Disputes involving data breaches, business associate obligations, and privacy and security issues.
- Disputes involving marketing claims, unfair business competition, and false advertising.
- Employer/employee disputes, whether the employer is a hospital, healthcare facility, lab, medical group, or physician practice, and including wrongful termination.
- Personal injury disputes in the healthcare arena.
- Products liability issues involving medical devices.
- Real estate disputes among healthcare industry players.
- Reimbursement disputes between commercial insurers and healthcare providers over claims.
- Trade secret, confidentiality, and intellectual property disputes, often in the employment context.
The healthcare arbitrator must have deep knowledge of relevant healthcare law.
Our healthcare and life sciences lawyers can bring industry knowledge to bear in representing clients in the healthcare arbitration process, and they can also serve as healthcare arbitrators.
Prior to any dispute resolution process, our healthcare lawyers will conduct a thorough analysis of the potential claims, counterclaims, and likely options. We have expertise in corporate law as well as healthcare law. For example, we will go in depth into options such as removing a director, firing an officer, liquidating a partnership, or triggering buy/sell provisions with respect to a shareholder. We can understand, explore, and explain the possible pathways to a client, whether they involve interests as a shareholder, director, officer, or partner in a venture.
Healthcare Mediation
Mediation offers a kinder, gentler way to resolve healthcare disputes, in which the parties can sit before a neutral arbiter of the dispute and can tackle the disagreements that underlie their legal claims. Depending on the situation, the healthcare mediator might recommend monetary compensation, dissolution of a shared venture, or other options.
Our healthcare lawyers can represent clients in mediation and can also serve as healthcare mediators themselves when called to mediate business and healthcare disputes. Healthcare mediation can resolve similar types of claims to those addressed by healthcare arbitration. A typical dispute resolution clause in a healthcare agreement can, for example, include language such as this:
Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, before one (1) arbitrator. The arbitration shall be administered by AHLA Alternative Dispute Resolution Service Rules of Procedure for Arbitration, in the above-mentioned city or county. Judgment on the award may be entered in any court having jurisdiction. This provision shall not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator.
Each Party has read and understood this Section (Arbitration) and understands that it thereby agrees to submit any claims arising out of this Agreement to binding arbitration, and that this dispute resolution provision constitutes a waiver of the Party’s right to a jury trial. HOWEVER, before either Party initiates Arbitration of any dispute, the Parties agree to attempt mediation of the conflict with a mutually agreeable trained mediator in the above-mentioned city or county. “Trained mediator” means a professional with actual training and experience in the field of Mediation and/or dispute resolution.
In other words, the parties mediate first, then arbitrate if they cannot resolve the dispute through mediation. If there is no contractual arbitration clause, then failed mediation may result in litigation. We typically recommend mediation as a way for our clients to get to the root of their disputes and to try to get a resolution in the most cost-effective, least intrusive way.
Measuring Risk and Reward in Healthcare Disputes
In a recent healthcare dispute, we advised the client not only about the claims this client could file against the other party, but also about the potential counterclaims that could be filed against the client.
We told the client, “It’s difficult to weigh the risks. In either case, litigation can be expensive, protracted, draining, and nasty. Not everyone has the stomach for it. You have to make the ultimate decision.”
This particular client was fuming at the other side’s behavior, yet did not have strong claims, had a lot of exposure on the counterclaims, and did not have the requisite “war chest” for a lawsuit. In such a case, there were better options on the table. As the client’s zealous advocates, we wrote strong cease-and-desist and follow-up demand letters. Ultimately, we obtained a settlement that benefited the client, without draining the treasury.
In reflecting on relative risk and reward, sometimes the driving issue for the client is money, their financial resources, and ability or willingness to commit to pursuing the matter through the courts. In other cases, they are concerned about time or reputation. We take all the variables into account as contested matters require special consideration of the client’s various needs.
FAQ
Great! Let us know and we’ll do a conflicts check and then send you an engagement letter. Typically we want to know if we are going to represent you as an individual, or your entity (corporation or LLC); we’ll also want to know your website and some basic contact information.
Review our legal services to see some of the areas we like to work in; check our testimonials, client roster, and experience; read some of our blog posts; check out our Linked In community; or just call or email us to explore. Put simply, we represent health and wellness products, technologies, practices and ventures that accelerate health and healing.
We are very comfortable working with clients via phone and email. You can sign, scan and email the engagement letter, and submit the advance by check or online.
The answer depends on the complexity of the project. Each client’s situation is different. We want every client to receive the best possible advice, and so we want to be in a position to devote as much time as is required to do that. Look to our testimonials, client roster, and experience. We work with our clients effectively and efficiently and build long-term relationships based on mutual trust. We bill hourly and do not offer project or flat fees. Lawyering is an art, not a science – we’re intuitive as well as skilled lawyers.
Yes, like most law firms, we require an advance against fees and costs. Our typical advance ranges from $3,500 – $10,000. We offer our expertise and savvy and work hand-in-hand with you toward your goals. Occasionally, we will offer you a one-hour consult as a way to jump-start our work together, and give you an overview of critical issues, with guidance on the critical business cross-roads you’re facing. We do not take equity or deferred compensation.
Our Firm doesn’t quite “quotes” or answer “how much does it cost.” Through long experience, we’ve found that the answer is pretty much meaningless. Some lawyers and law firms give quotes, but if you read the accompanying disclaimer, you’ll see that the disclaimer basically says that you can’t depend on the quote for anything. In our long experience, “how much it costs” depends on a lot of variables, including:
- What the client is asking for
- What the client really needs
- What the client doesn’t know they don’t know
- What we discover as we dive into the legal research and analysis
- How complicated the problem really turns out to be
- How much client will want to do on their own
- Whether we can find some elegantly simple solutions to sub-parts of the puzzle
- What decisions we make together, and separately, as we explore the puzzle and put solutions and strategies together
In many cases, we might think a project is very complex but then as dig in, we can make executive decisions and recommendations that save the client dozens of hours of lawyer time and tens of thousands of dollars. This happens a lot with our clients. In other cases, the client might think the problem is simple but as we start to review it, the puzzle is much larger; sometimes the client throws in extra facts and complications at the last minute, and that will increase the expense and work; sometimes we’ll give the client “homework” so they can DIY a piece, taking it outside the need for lawyer time.
One thing we do is get our clients frequently on the phone. We find that the Legal Strategy Session often cuts through the fog. Where we need to do a chunk of written legal work, we’ll do so and let you know that’s what we think is needed. Where we can be more efficient with a call, we’ll tell you that as well.
Many clients come us after having wasted tens of thousands of dollars with other lawyers. Read our testimonials. We’re here to provide a lot more value than the retainer—our business model and Firm policy is to provide at least 3-5 times the value back to you. That’s our model and we’re sticking to it. We’re not trying to sell you on a “cheap retainer” or promise of discounts. We’re here to solve a big hairy problem and get you where you need to go, as efficiently and productively as we can.
Typically, assessing feasibility involves legal and strategic advice, which we provide in the 45-minute consult, in a way that is appropriate to the time we have together there.
The only way to know is to jump into the process. If you want to know more about us and how we work, browse our testimonials, look at our client rolodex, or review our experience on our website.
Work with us and find out how efficient and engaged we are with your business. We like to work with clients for life. It is a deep and trusting relationship.
Michael’s bio is online here. He has written books on healthcare law and policy, taught healthcarelaw as a faculty member at Harvard Medical School, garnered NIH and other medical research grants, and published over 100 articles in legal and medical journals. Michael speaks all over the world on healthcare topics.
