- 5TH EDITION
In this, our fifth publication of The Journal, we explore the world of mediation in health care and medical malpractice claims, take an intriguing look at a possible new role for conflict resolution neutrals in electronic discovery disputes, reflect upon the benefits of mediation in race discrimination employment disputes, and enjoy a fanciful rendition of how mediation might have impacted the biblical conflict presented by Imperial Rome’s trial of Jesus Christ.
Mediator and Health Care Consultant, Sarah Abigail leads us through the problems medical malpractice mediators face in balancing notions of therapeutic privilege, mediation confidentiality, and simply doing the right thing with injured patients. New York attorney/mediator, Ezra Zonana then offers us a thoughtful consideration of whether it is best to use evaluative or facilitative mediation techniques in reconciling medical malpractice claims, and Professor Haavi Morreim of the University of Tennessee Health Science Center discusses the problems of mediating medical malpractice claims under the shadow of the National Practitioner Data Bank. Our focus on medical malpractice mediations then closes with an intriguing joint report from health care executive Dale Hetzler (Erlanger Health System) and law students Deanne Messina and Kimberly Smith (Belmont University School of Law) on how mediating conflicts in hospital staff communications can serve to reduce medical malpractice incidents.
Moving to more generic topics, Zachary Parkins, a University of Miami Law School student makes a compelling argument for modifications to our existing federal discovery program to create a special, “Electronic Discovery Master” to handle the flood of electronically stored information files now engulfing civil litigation. Law professors Floyd Weatherspoon and Kendall Isaac join forces to produce an instructive piece demonstrating how mediation can uniquely benefit resolution of race discrimination claims. Finally, we end this issue with an engrossing presentation from Michelle Daly, another University of Miami Law School student, as she speculates on how a mediation of the conflict between the governing powers of ancient Rome and Jesus of Nazareth might have occurred, and Michael Rubenstein creating the give and take of a mediation between David and Goliath.
The American College of Civil Trial Mediators and the Editorial Board of The American Journal of Mediation hope you enjoy this issue. We’ll look forward to receiving your contributions for future publications.
The Obstacle of Therapeutic Privilege in Healthcare Mediation(1).pdf
SARAH ABIGAIL, 2011 Graduate
University of Pennsylvania
Sarah Abigail is a health policy consultant and mediator. She graduated with an Honors B.Sc. from the University of Toronto, followed by an M.B.E. at the University of Pennsylvania.
Getting Healthier A Proposal for Improving Med Mal Mediation.pdf
EZRA ZONANA, 2010 Graduate
Benjamin N. Cardozo School of Law
Emeritus Fellow Sponsor: Professor LELA P. LOVE
Ezra Zonana is a recent graduate of the Benjamin N. Cardozo School of Law. While there, he attended the year long Alternative Dispute Resolution Clinic, where he received intensive training in mediation. He has been approved to mediate by the Safe Horizon Mediation Program and has worked as a mediator in Manhattan Small Claims Court and the Safe Horizon Brooklyn Mediation Center. He is currently employed as an Assistant District Attorney with the Nassau County District Attorney’s Office in New York.a
Mediating Med Mal Without The Data Bank Reports.pdf
HAAVI MORREIM, JD, PhD, Professor
College of Medicine
University of Tennessee Health Science Center
Haavi Morreim, J.D., Ph.D., is a Professor in the College of Medicine at the University of Tennessee Health Science Center. She does clinical teaching, consulting, and research, with special interests in dispute resolution, health care's changing economics and the litigation issues surrounding clinical medical research. She is also a licensed attorney, assisting clients in a variety of pro bono cases. Dr. Morreim has authored two books and over one hundred forty articles in journals of law, medicine, and bioethics, including California Law Review, Vanderbilt Law Review, Tort and Insurance Law Journal, Journal of the American Medical Association, Seton Hall Law Review, Health Matrix, Archives of Internal Medicine, Hastings Center Report, and the Wall Street Journal. Dr. Morreim has presented hundreds of invited lectures nationally and internationally, to such groups as the American Bar Association, the American Health Lawyers Association, the American Medical Association, the National Academy of Elder Law Attorneys, and the Tennessee Bar Association. She is an experienced mediator, and is listed by the Tennessee Supreme Court as a Rule 31 mediator for both civil and family matters.
DALE C. HETZLER, MSCM, JD
DEANNE R. MESSINA, MSCM
KIMBERLY J. SMITH (Belmont University School of Law)
Erlanger Health System College of Medicine
University of Tennessee Health Science Center
Distinguished Fellow Sponsor: HAYDEN D. LAIT, Esq.
Dale C. Hetzler is CLO at Erlanger Health System, a Level One Trauma Center and academic medical center affiliated with the University of Tennessee College of Medicine in Chattanooga, TN. Prior to Erlanger, Mr. Hetzler served as general counsel to Children’s Healthcare of Atlanta. Mr. Hetzler was an adjunct professor at Emory School of Law from 2004 – 2008 and at Kennesaw State University graduate school in 2007. He is past chair of the Georgia State Bar Dispute Resolution Section, co-president of the Tennessee Hospital Association Alliance of Tennessee Hospital Attorneys in-house committee, and has served on the Georgia Supreme Court Commission on Dispute Resolution. A graduate of Texas Christian University, Mr. Hetzler earned his JD from Baylor University School of Law, and his Master of Science in Conflict Management from Kennesaw State University. He has been licensed as an attorney in Texas, Missouri, Illinois, Georgia and Tennessee, is a registered neutral in Georgia and a Rule 31 listed mediator in Tennessee.
Deanne R. Messina has worked in private, non-profit and public health care for fifteen years. Her experience includes bringing together various parties to reach common interests of providing the highest quality care to patients. Messina earned a BS degree in Health Promotion from Auburn University and a MS degree in Conflict Management from Kennesaw State University.
Kimberly Smith is a paralegal at Erlanger Health System, a Level One Trauma Center and academic medical center affiliated with the University of Tennessee College of Medicine in Chattanooga, TN. Prior to Erlanger, Smith worked as a paralegal in private practice law firms. Ms. Smith is currently a member of the charter class of the Belmont University College of Law and President of the Belmont Health Law Student Association. Smith is a Tennessee Supreme Court Rule 31 Listed General Civil Mediator. Smith earned her Bachelor’s Degree in Paralegal Studies from Kaplan University in Davenport, IA. Smith is a member of the Golden Key International Honor Society, the Alpha Beta Kappa National Honor Society, and the National Association of Legal Assistants.
Distinguished Fellow Sponsor: MELVIN A. RUBIN, Esq.
Zachary Parkins is a 2012 J.D. candidate at the University of Miami School of Law, where he is a member of the Inter-American Law Review. Zachary graduated from The Ohio State University’s Fischer College of Business with a Bachelor of Science in Economics in 2006. He worked at Mesirow Financial Consulting as an Associate and Senior Associate in New York City before beginning law school in the fall of 2009. Zachary would like to thank Professor Melvin Rubin and Dean Marni Lennon for their guidance and encouragement with the creation of this article.
Resolving Race Discrimination in Employment Disputes Through Mediation.pdf
FLOYD D. WEATHERSPOON, Honorary Fellow
Professor Capital University Law School
KENDALL D. ISAAC, ESQ., Assistant Professor of Law
Appalachian School of Law
Professor Weatherspoon serves as a neutral in complex commercial, labor and employment disputes. Professor Weatherspoon is a professor at Capital University Law School (Columbus, Ohio) where he teaches courses on ADR, labor and employment arbitration, employment discrimination, employment law, civil rights, labor law, collective bargaining and managerial mediation. He serves on a number of arbitration and mediation panels, including the American Arbitration Association, the Federal Mediation and Conciliation Services, various state employment relations boards, and the United States District Court, Southern District of Ohio panels. He also serves as an external administrative judge for state and federal agencies. He is a member of the Ohio Bar, American Bar Association, National Bar Association, National Academy of Arbitrators, and the American College of Civil Trial Mediators.
Kendall D. Isaac Esq., is an assistant law professor at Appalachian School of law where he teaches alternative dispute resolution, negotiations and appellate advocacy. He is also the owner of The Isaac Firm LLC, a law practice that concentrates on mediation and employment law matters. Prior to forming his own law firm, Kendall worked for a large regional law firm doing employment law and workers’ compensation, and he has also held employee relations and human resource management roles for several Fortune 500 companies. He graduated from The Ohio State University with his Bachelor of Arts in Communications and graduated from Capital University Law School with his law degree and a concentration in labor and employment law.
MICHELLE DALY, Student
University of Miami School of Law
Distinguished Fellow Sponsor: MELVIN A. RUBIN, Esq.
Michelle Daly received her J.D. degree from University of Miami Law in December of 2010. Over the last year, she has been working for a boutique tax firm. She spent the summer before her second year studying abroad in Greece, Italy, Turkey and Spain. Prior to entering law school, she lived in New York City and worked for Faust Goetz Schenker and Blee, in Manhattan’s financial district. As an undergraduate, she studied history with the Jesuits at Le Moyne College in Syracuse, New York. Before graduating early from Le Moyne, she studied at the Sorbonne in Paris, France. She studied mediation under Professor Melvin Rubin who sparked her interest in alternative dispute resolution. Michelle recently passed the New York bar exam and spends her free time running and learning to fly.
Michael Rubenstein is a JD/MBA candidate at the University of Miami with concentrations in Corporate Law and Finance. Michael earned a Bachelor of Science, cum laude, from Vanderbilt University. He currently works for the Bessemer Trust Company in estate planning and private wealth management. Michael is the President and Founder of the Business and Corporate Law Society, Secretary of the Entertainment and Sports Law Society, and Alumni Chair of the Real Property, Probate, and Trust Law Society at the University of Miami School of Law. He is also the President of the Business Law Society, former Editor-In-chief of the Finance Club, and former Sports Chair of the Marketing Club at the University of Miami School of Business Administration. He would like to thank Professor Melvin Rubin of the University of Miami School of Law for his guidance in writing this article.