Publications: Mediation and Arbitration


  • Nursing Home Arbitration Rule Put on Hold

    November 8, 2016

    A federal rule that was to have banned pre-dispute arbitration agreements in nursing homes and other long-term care providers was put on hold by a federal judge on Monday. The new rule, which would apply to facilities participating in Medicare or Medicaid, was to go into effect on November 28, 2016. The rule was postponed indefinitely by Monday’s ruling by U.S. District Judge, Michael P. Mills of the Northern District of Mississippi. The ruling granted a preliminary injunction preventing the U.S. Centers for Medicare and Medicaid Services (CMS) from enforcing the rule. CMS had published the new rule only a month...



  • Nursing Home Arbitration Rule Challenged in Court

    October 19, 2016

    The nation’s largest association of long-term care providers filed a lawsuit this week asking a federal court to block enforcement of new federal regulations that will prohibit pre-dispute arbitration agreements in nursing homes and other long-term care facilities participating in Medicare and Medicaid. The Centers for Medicare & Medicaid Services (CMS) published the new regulations on October 4, 2016. The rules allow post-dispute arbitration agreements, but such agreements may only be entered into voluntarily, and not as a condition of remaining at the facility. The rules also require facilities to take other steps to help ensure the resident’s understanding and not...



  • New Federal Regulations Prohibit Pre-Dispute Arbitration in Long-Term Care

    October 6, 2016

    Disputes over care in nursing homes and other long-term care facilities will increasingly be decided in litigation, rather than arbitration, as a result of new federal regulations banning pre-dispute arbitration agreements in facilities that participate in the Medicare and Medicaid programs. The Centers for Medicare & Medicaid Services (CMS), an office of the U.S. Department of Health and Human Services, on Tuesday published new, sweeping regulations that govern long-term care. In addition to the new rule on arbitration agreements, the regulations make major revisions to rules regarding staffing, care planning and many other aspects of long-term care. The regulations set standards...



  • Sweeping New Rules Govern Long-Term Care

    October 6, 2016

    Nursing homes and other long-term care facilities across the country must meet stringent, wide-ranging and costly regulatory requirements in order to participate in Medicare and Medicaid programs, under a new rule issued Tuesday by the U.S. Department of Health and Human Services and its Centers for Medicare and Medicaid Services. The new regulations will cost each facility, on average, about $63,000 to implement in the first year. They will be phased in over the next three years. Among the most significant for long-term care operators will be the new regulations regarding staffing and care planning (the new regulations also prohibit pre-dispute arbitration...



  • Strategic Use of Limitation of Liability Provisions in Construction Contracts

    May 28, 2015

    One of the most important strategic approaches in modern day construction contract negotiation is leveraging the extent to which the parties will agree to limitations upon certain liabilities. While such limitations fall into a number of different categories, one of the most common is the mutual waiver of consequential damages. Though agreeing to limit the other party’s liability surely comes at some risk, there are benefits that should be carefully weighed before making a go/no-go decision on such a waiver. In particular, the benefit of limiting the total potential of your project cost. On its face, a mutual waiver of...



  • Take the Mystery Out of the Recoverability of Attorneys’ Fees in Construction Disputes

    May 28, 2015

    In American litigation, all parties are responsible for paying their own litigation expenses (including attorneys’ and experts’ fees) regardless of the outcome of a case. This “pay your own way” rule applies with equal force to claims arising on construction projects, subject to narrow exceptions. For example, a party who successfully prevails on a lien claim is entitled under the statutes to recovery of its attorneys’ fees. The same is true in circumstances where an injury is caused by an OSHA violation. By and large, however, the parties know going in that any litigation that ensues will be an expensive...



  • Take Control: Customize Construction Agreements to Limit the Time and Costs of Potential Arbitration

    June 30, 2014

    Arbitration was once the industry’s preferred mechanism for resolving construction disputes. This has changed significantly in recent years as construction disputes addressed via arbitration have become no less costly, timely, or efficient than traditional litigation. Often a party’s (or its attorney’s) zeal to engage in broad discovery efforts virtually double or triple the transactional costs of arbitration and prolong ultimate resolution by many months or even years. Similarly, post-decision litigation fights over an arbitration award’s enforceability sometimes unduly prolong the achievement of finality, which is one of arbitration’s most valued benefits. Burned by one or more of these experiences, construction...



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