Rev feb 7 2014 7 2014questions swirl around

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REV. (Feb. 7, 2014) -of-medical-malpractice-panels/.136. Cf 10 GUAM CODE ANN. § 10100-10147 (2015) (mandating binding arbitration for med-ical malpractice claims). Some states require courts to refer civil cases to non-binding arbitrationas a case management and settlement tool. See, e.g., HAW. REV. STAT. ANN. § 601-20 (LexisNexis2015).137. Scholars often refer to this "private ordering" as "mandatory arbitration" to signal the lackof genuine, voluntary election by both parties to arbitrate. See Jaime Dodge, The Limits of Proce-dural Private Ordering, 97 VA. L. REV. 723, 728, 751 n. 112 (2011) (courts increasingly enforceprivate contracts that defy fundamental norms of procedure); Melvin Aron Eisenberg, Private Or-dering Through Negotiation: Dispute-Settlement and Rulemaking, 89 HARV. L. REV. 637 (1976).[VOL. 76:247
2017]TRIAL AND ERRORproviders and patients to contract for binding arbitration and, in a limitednumber of jurisdictions, attempted to regulate the enforceability of contractterms.38Binding arbitration operates like private adjudication. Unlike otherforms of ADR, arbitration is not designed to induce voluntary settlement be-fore trial but instead to side-step litigation altogether by vesting full deci-sionmaking power in private hands.' 39 Arbitrators make decisions based onthe facts presented by the parties and the legal merits of the case.40 In thecase of an alleged malpractice incident, an arbitrator determines whether ornot a standard of care was met, assigns fault, and awards damages in com-141pensation.Initially designed as a way for sophisticated parties to manage their busi-ness disputes quickly, arbitration allowed contracting parties to waive theirright to trial and instead have their dispute decided by a private person, orpanel of persons, from which there are limited rights to appeal.' 42 However,the application of arbitration has expanded dramatically over time, and theextent to which patients, and many other consumers, knowingly and volun-tarily elect to arbitrate remains an open question.43 In the medical context,138. Irving Ladimer & Joel Solomon, Medical Malpractice Arbitration: Laws, Programs,Cases, 1977 INS. L.J. 335, 337-39.139. Martin H. Redish, Legislative Response to the Medical MalpracticeInsurance Crisis: Con-stitutional Implications, 55 TEX. L. REV. 759, 768 (1977).140. Kenneth A. DeVille, The Jury is Out: Pre-Dispute Binding Arbitration Agreements forMedical Malpractice Claims, 28 J. LEGAL MED. 333, 333-39 (2007). Parties can agree on whichprocedures to use, for example how facts will be gathered and presented to the arbitrator, and whichsubstantive law will govern the dispute. See, e.g., AM. HEALTH LAWYERS ASS'N DISPUTERESOLUTION SERV., RULES OF PROCEDURE AND GUIDE TO ARBITRATION CLAUSES (2014),.

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