Frequently Asked Questions
- What are the duties and responsibilities of the Dispute Resolution Service staff?
- Does the Dispute Resolution Service operate independently from other AHLA functions?
- How do I obtain information about a case?
- Must parties and neutrals use the Electronic Case Management System?
- What happens if a respondent chooses not to participate in arbitration?
- If I believe all or part of a claim does not belong in arbitration, what should I do?
- What happens if a Respondent files an action in court to stay or dismiss the arbitration, or if the parties agree to suspend the arbitration?
- Will AHLA enforce an agreement to mediate?
- Can I see the whole AHLA roster of neutrals?
- What happens when a contract calls for arbitration under the rules of the National Health Lawyers Association or American Health Lawyers Association?
- May I appear at an arbitration hearing in a state in which I am not admitted to practice law?
- Does AHLA charge a fee if a hearing is cancelled on short notice?
- Who is responsible for paying deposits?
- Is there a fee to file a counterclaim or third-party claim?
- May parties see the invoices submitted to AHLA by a neutral?
- May an arbitrator issue a subpoena for a deposition?
- Should a Neutral Sign a Business Associate Agreement?
- What happens if one party declares bankruptcy?
- What is a Statement of Claim?
- How do I send a secure message?
- What proof of service will AHLA accept?
What are the duties and responsibilities of the Dispute Resolution Service staff?
- Robin Carter
- Assisting parties with new arbitration claims and mediations and with using the case management system.
- Processing the payment of fees, deposits, invoices, and refunds.
- Carine Brice
- Administering claims after a neutral has been appointed. - requesting deposits; scheduling pre-hearing conferences and evidentiary hearings; and closing cases
- Geoff Drucker
- Proposing and appointing neutrals - reviewing the agreement to arbitrate and statement of claim; providing a fair and balanced panel of qualified neutrals; granting stays prior to appointment of a neutral or panel; and offering appointments to neutrals
- Reviewing and approving invoices
Does the Dispute Resolution Service operate independently from other AHLA functions?
Yes. All parties, party representatives, and neutrals are treated alike by the Dispute Resolution Service without regard for their status as an AHLA member, leader, contributor, or sponsor. When AHLA members or sponsors (including past and present leaders) represent parties, they and their clients pay the same fees as non-members and receive the same service provided in the same manner as non-members.
Similarly, the qualifications to be on the neutral roster are the same for members, sponsors, and non-members. All neutrals must agree to the same terms and conditions of service. In proposing candidates for arbitrations, mediations, and peer review hearings, the Dispute Resolution Service does not consider a candidate’s past or present membership or status in AHLA.
How do I obtain information about a case?
AHLA maintains a list of people who can access the website that houses the documents, communications, and financial information associated with a case. Everyone on this list automatically receives: (a) copies of messages sent from the case site, and (b) alerts indicating that a document has been uploaded to the site. For security reasons, only AHLA staff can add or remove someone from the access list.
Initially, an administrator grants access to the person who filed the claim. An administrator also contacts the person identified on the claim form as the respondent's likely representative to ask whether he or she is going to represent the respondent. If the administrator receives an affirmative response, she will grant access to the respondent's representative.
A party representative may ask the administrator to grant access to an unlimited number of additional persons such as other partners, associates, or support personnel at his or her law firm. The party representative may also request access for clients and client representatives.
If a person other than a party representative requests access, an administrator will grant this request if this person's email address indicates that he or she is employed by a party or a party representative. For example, if the claimant, ABC Hospital, is represented by DEF Law, an administrator will grant access to someone with an ABCHospital.com or DEFLaw.com email address. Otherwise, an administrator will refer the access request to the appropriate party representative for approval.
A party representative may ask an administrator to withdraw access at any time. For example, if an associate accepts a position at another firm, a partner should ask an administrator to delete the associate from the access list.
The same process applies to neutrals. They receive access when appointed and lose it if they withdraw or are removed.
If you have any questions, please contact contact us.
Must parties and neutrals use the Electronic Case Management System?
The Electronic Case Management System (the “ECM”) is the official means of serving notices, sending communications, and filing documents (See Rule 1.2). Parties and neutrals often prefer to communicate via email because it is quicker, easier, and more familiar. But email is harder to track and less secure. The ECM automatically sends messages to everyone on the access/distribution list, thus ensuring no one is inadvertently left off of important communications. In addition, the ECM retains a copy of all messages sent.
A document attached to an email is only as secure as the server from which it is sent and the server or servers to which it is delivered, and no one can control both ends, or what lies in between. Uploading and downloading documents from the ECM presents far less risk of sensitive health or proprietary information ending up in unauthorized hands.
What happens if a respondent chooses not to participate in arbitration?
Respondents occasionally fail to enter an appearance or refuse to take part in certain aspects of a proceeding, especially the payment of deposits. The Dispute Resolution Service administers such claims as follows:
- Notice of claim to respondent - If the Respondent fails to appear in the matter by establishing an account in the ECM (or by designating a representative to do so) the Claimant must serve the Respondent with notice of the proceedings by other means (see Rule 2.2). The Claimant, not the Administrator, must assess and comply with the service requirements of the jurisdiction in which the Claimant may ultimately seek to enforce an arbitration award.
- Appointment of arbitrator - Once the Claimant represents to the Administrator that the Respondent has received adequate actual or attempted notice of the claim, the Administrator will provide a panel of candidates through the ECM for review and ranking. If the Respondent fails properly to respond, the Administrator will grant the Respondent five additional business days in which to submit rankings of the neutral candidates (see Rule 3.2(f)). If the Respondent fails to submit its rankings by this second deadline, the Administrator will appoint an Arbitrator or panel based upon the rankings it has received from the Claimant.
- Arbitration proceedings - The Claimant should notify the Respondent of the pre-hearing conference, the evidentiary hearing, and any other communications between the Claimant and the Arbitrator. The Arbitrator may communicate ex parte with the Claimant if the Respondent has been notified of a pre-hearing conference or hearing but fails to participate (see Rule 4.2(c)).
- Arbitrators’ fees - In commercial cases, if the Claimant wants the claim to move forward despite the Respondent’s refusal to pay its share of the deposit, the Claimant must deposit the full amount requested to meet the Arbitrator’s anticipated fees and expenses. The final award may take into account the Respondent’s failure to share the costs of arbitration with the Claimant (see Rules 5.3(b) and 7.6(b)(2)). In consumer cases and certain employment cases, the health care entity or employer may be responsible for paying all of the forum costs for arbitration and may be subject to default judgment for failure to pay. See Rules of Procedure for Consumer Arbitration, Rule 5.3(c); Rules of Procedure for Employment Arbitration, Rules 7.6(c) and 5.3(c). If the health care entity or employer deposits insufficient funds to allow for the appointment of an arbitrator, then AHLA may appoint an attorney on staff as the Arbitrator to enter default judgment pursuant to Consumer or Employment Rule 5.3(c) if the record supports such a ruling. Similarly, if an arbitrator accepts an appointment but withdraws because insufficient funds are deposited to pay for his or her service, then AHLA may appoint an attorney on staff as the replacement Arbitrator to enter default judgment pursuant to Consumer or Employment Rule 5.3(c) if the record supports such a ruling.
- Award in respondent’s absence - Except as is provided in Rule 5.3(c) of the consumer and employment rules, the Arbitrator may not issue a default judgment; a final award must be based on evidence presented at a hearing (see Rule 7.2). To keep costs down and to avoid unnecessary delays, the hearing may be conducted by telephone. If no witness testimony is required, evidence may be established by the submission of documents.
- Respondent’s delayed appearance - A Respondent may enter its appearance at any time up to the close of the hearing. However, the Respondent is not entitled to have any determinations made prior to its appearance reversed or reconsidered unless the Claimant failed to provide the Respondent with adequate actual or attempted notice of the proceeding. For example, if the Administrator has already appointed an Arbitrator or a panel, the Administrator need not withdraw the appointment and repeat the appointment process. Similarly, if the Arbitrator has conducted a pre-hearing conference and issued a pre-hearing order, the Arbitrator need not modify this order.
If I believe all or part of a claim does not belong in arbitration, what should I do?
A party who does not believe all or part of a claim belongs in arbitration should participate in the selection of an Arbitrator (or panel) and promptly raise its arguments with the Arbitrator once he or she accepts the appointment. A party does not waive its right to contest the validity or application of an arbitration clause by participating in the selection of an Arbitrator, or by promptly asking the Arbitrator to address these issues.
Responding parties frequently contest arbitration for a variety of reasons. They may argue that an arbitration clause is invalid, the contract containing the arbitration clause is invalid, the agreement to arbitrate does not apply to all or some of the issues in dispute, or the agreement to arbitrate does not apply to one or more of the parties named in the claim. Under Rule 3.1, the Administrator will accept a claim, despite such arguments, if it appears that the parties agreed to arbitrate it under the AHLA Rules of Procedure for Arbitration. This is a low threshold because the Administrator is not in a position to resolve contested issues of fact or law. Rather, the Administrator’s role is to appoint an arbitrator who can decide such jurisdictional issues.
By refusing to participate in the selection process, a party foregoes the opportunity to have an equal say in who the decision-maker will be. There is no advantage to this strategy.
What happens if a Respondent files an action in court to stay or dismiss the arbitration, or if the parties agree to suspend the arbitration?
The Dispute Resolution Service does not stay or dismiss proceedings merely because a party has requested a court to stay or dismiss the arbitration. Rather, an arbitration may be discontinued only upon the order of a court possessing competent jurisdiction over the matter. If both parties agree to stay arbitration pending the outcome of a parallel court proceeding, the Dispute Resolution Service will honor this request.
Will AHLA enforce an agreement to mediate?
If a health care contact requires mediation under the auspices of AHLA, or makes mediation a prerequisite to filing a claim for arbitration with AHLA, a party may request AHLA to enforce the mediation clause. For legal and practical reasons, we cannot do so outside the context of a pending arbitration.
If one side claims it met its obligation to mediate and the other side disagrees, AHLA has no authority to rule on the disputed issues of fact and law. And even if it were to do so, ordering parties to mediate is often futile. Unlike arbitration, which can proceed without the respondent's consent or compliance, mediation hinges on cooperation.
An arbitrator, once appointed, may decide that a claimant has failed to exhaust a contractual requirement to mediate and stay arbitration pending the outcome of mediation.
By accepting a claim and appointing an arbitrator, AHLA is not deciding whether a requirement to mediate has or has not been met. Rather, it is putting the dispute in the hands of someone with the authority to make a decision. By participating in the selection of an arbitrator (or panel), a party does not waive its right to plead lack of exhaustion and request a stay once the arbitrator (or panel) is appointed.
Can I see the whole AHLA roster of neutrals?
Yes. Review AHLA’s exclusive roster of mediators online. Since AHLA does not have an exclusive relationship with arbitrators, it cannot make the full list available for review.
What happens when a contract calls for arbitration under the rules of the National Health Lawyers Association or the American Health Lawyers Association?
The Dispute Resolution Service routinely accepts claims that call for arbitration under the rules of the National Health Lawyers Association or the American Health Lawyers Association. The National Health Lawyers Association and the American Academy of Healthcare Attorneys merged into a single organization on July 1, 1997, which was renamed the American Health Lawyers Association. The arbitration service created and administered by the NHLA has been administered by or on behalf of the AHLA since the merger and name change. On January 16, 2020, the American Health Lawyers Association changed its name to the American Health Law Association.
May I appear at an arbitration hearing in a state in which I am not admitted to practice law?
Since the Dispute Resolution Service does not require a representative to be an attorney (see Rule 1.3), it does not require a representative to be admitted to practice law in a particular state or seek admission pro hac vice for the purposes of an arbitration. However, the state bar may require an out of state attorney to request and seek approval to appear pro hac vice for an arbitration hearing.
Does AHLA charge a fee if a hearing is cancelled on short notice?
No, but a neutral may include a cancellation policy in his or her profile and bill AHLA in accordance with this policy. A neutral may not impose new or higher fees while a case is pending, unless it lasts exceptionally long.
If you did not retain a copy of an arbitrator or mediator's profile, a staff member can send it to you.
Who is responsible for paying deposits?
The costs of arbitration are generally split evenly between the parties. See Commercial Rule 7.6(b). If there are two parties each pays half; if there are three each pays one-third, etc.
The Dispute Resolution Service treats two or more claimants or respondents as one party if they appear to be parts of the same entity and are represented by the same attorney or firm. Here are some common examples:
- A company and its subsidiary;
- A company that no longer exists and the company that purchased it; and
- A company and its CEO acting in his or her official capacity.
Illustration1: A provider files a claim against an insurance company and its subsidiary. The same law firm represents both respondents. The Dispute Resolution Service would treat the respondents as one and ask each side (claimant and respondents) to pay half of the requested deposit.
Illustration 2: A payer files a claim against a hospital and a self-employed physician with privileges at the hospital. The respondents are represented by different law firms. The Dispute Resolution Service would treat the respondents as separate entities and ask all three parties to pay one-third of the requested deposit.
Consumers generally do not pay deposits because they are exempt from paying forum costs. See Consumer Rule 7.6(a). The same is true of employees if the claim is premised upon a mandatory arbitration clause. See Employment Rule 7.6(c).
A party who believes the Dispute Resolution Service is not dividing up responsibility for paying deposits appropriately may raise this issue with the arbitrator (or panel chair). The Dispute Resolution Service will abide by the arbitrator’s (or panel chair’s) ruling.
Is there a fee to file a counterclaim or third-party claim?
Generally, to file a counterclaim or third-party claim, a party must pay the same amount as the claimant paid to file the original claim. See Rule 5.1. There is an exception, however, for consumer and employment cases in which: (a) the corporate entity pays the filing fee on behalf of the individual and then files a counterclaim against the individual; or (b) the corporate entity pays the filing fee for its own claim and the individual then files a counterclaim against the corporate entity.
The aim of the AHLA rules to provide a fair process. When costs are split, it seems fair for parties to pay the same amount to pursue a claim, whether they claim first or in response to a previous claim. When one side bears 100% of the costs, it does not seem fair to ask that party to pay twice.
May parties see the invoices submitted to AHLA by a neutral?
Yes. All invoices are available upon request. Please contact us for assistance.
May an arbitrator issue a subpoena for a deposition?
Rule 5.8 authorizes arbitrators to issue subpoenas “for the attendance of witnesses or the production of documents.” The Dispute Resolution Service interprets this authority as extending only to hearings, not to discovery.
Should a Neutral Sign a Business Associate Agreement?
A business associate agreement is a contract to protect personal health information entered into by a “covered entity” (such as a health plan or health care provider) and a “business associate,” as those terms are defined in regulations implementing the U.S. Health Insurance Portability and Accountability Act of 1996.1
Neutrals are not business associates because they do not perform delegated functions on behalf of a covered entity. Arbitration and mediation are not routine operational or administrative functions that a covered entity could itself perform. Neutrals do not stand in the shoes of either party to mediation and arbitration proceedings.
Moreover, neutrals are not engaged to perform legal services for a covered entity. An agreement to arbitrate or mediate is a mutual agreement by all party litigants to vest the administering organization with authority to appoint a neutral.2 The neutral serves the parties’ shared interest in resolving litigation privately and confidentially. To be effective, a neutral must be, and be perceived as, independent, i.e., having no allegiance or attachment to a single party or party representative. This could not be more different from the role of a business associate.
An attorney who serves as an arbitrator or mediator should make it clear to the parties that he or she is not performing legal services for either party, and there is no attorney-client relationship between them.3 Because mediation and arbitration are not legal services, neutrals need not be, and often are not, lawyers.4 The work they perform, therefore, is not and cannot be considered “legal services” within the definition of a business associate, or otherwise.
A covered entity’s demand for a business associate agreement puts a neutral in an untenable position. Refusing to sign would lock the neutral into a legal battle with the covered entity from which he or she would be hard pressed to emerge with the covered entity’s trust and respect. Conversely, if the neutral accedes to the covered entity’s demand, even though an agreement is not required, this can create a false impression that the neutral is partial, having assumed the role of a business associate, or that an attorney-client relationship exists between the neutral and the covered entity. Moreover, an arbitrator could not negotiate the terms of a business associate agreement because negotiating would require ex parte contact with the covered entity, which is strictly forbidden.5 Similarly, it is hard to imagine how a mediator could negotiate without appearing to have made concessions, which would compromise his or her neutrality.6
- See 45 C.F.R. § 160.103; 65 Fed. Reg. 82,462, 82,476 (Dec. 28, 2000).
- This is often done under the auspices of a dispute resolution administrator such as the American Health Law Association.
- See ABA Model Code of Professional Responsibility 2.4(b) and comment.
- Many of the neutrals on our roster do not have a law degree. Physicians with mediation training can be highly effective in resolving some of the most sensitive health care disputes.
- See The Code of Ethics for Arbitrators in Commercial Disputes, Canon III.
- See Model Standards of Conduct for Mediators, Standard III (A).
What happens if one party declares bankruptcy?
An automatic stay issued by a bankruptcy court applies to a pending arbitration. A party may alert the arbitrator by filing a notice of bankruptcy or notice of suggestion of bankruptcy. Unless the parties agree to dismiss the claim, the arbitrator should stay the claim pending the outcome of the bankruptcy petition.
Bankruptcies are fairly common in arbitration. Often the reason why a respondent has failed to pay the amount sought by the claimant is a lack of funds. Arbitrators should protect themselves from becoming unpaid creditors by ensuring that sufficient funds are on deposit to cover their anticipated time and expenses.
What is a Statement of Claim?
The AHLA Rules of Procedure for Arbitration require the filing party to provide “a statement describing the issue(s) to be arbitrated.” (Rule 2.1). The description must be sufficiently detailed to:
- demonstrate that the issues fall within the scope of the parties’ agreement to arbitrate (or a statute designating AHLA as an approved provider);
- demonstrate, if applicable, that the parties have agreed to submit their dispute to arbitration under the rules of the American Health Law Association Dispute Resolution Service and, if so, which set of AHLA rules (e.g., commercial, employment, consumer);
- enable the respondent and the arbitrator (once appointed) to understand the claim and enable the respondent to select an appropriate representative; and
- guide AHLA in determining which candidates to propose for review and ranking.
The statement must indicate what types of relief the claimant is seeking (e.g., damages and interest, attorneys’ fees) but need not provide specific dollar amounts.
The arbitrator, once appointed, may request more detailed information about the allegations in advance of the hearing.
How do I send a secure message?
The most secure way to communicate is by uploading a document to the case site. Case participants will receive via email an alert with the document name and a link to the case site. They may download the document, which is far more secure than receiving it via email. Content sent through the Message app on the case site is disseminated by email to all case participants, so it is only as secure as their email servers.
Please do not use your organization’s own secure message system. Fake secure messages are a favorite tool of hackers, so AHLA staff will not click on a link to what appears to be a secure message—but may not be. In addition, secure message systems often require users to create or input a password. AHLA already requires all case participants to enter a User ID and password to access documents on the case site. Requiring a second set of credentials is duplicative.
What proof of service will AHLA accept?
Arbitration Rule 2.2(b) provides that, if no one enters an appearance on behalf of the respondent(s), the claimant must provide proof of service. AHLA will accept any traditional form of proof such as an affidavit of personal service or confirmation of delivery by a common carrier (e.g., the U.S. Postal Service or Federal Express).
A respondent who fails to participate in arbitration may not comply with the award. If the claimant brings an action in court for enforcement, it will have to convince the court that service was adequate. Thus, when choosing a method of service, claimants should research the requirements of the court or courts with jurisdiction over a potential action for enforcement.
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