Courts and Alternative Dispute Resolution
Select two of the scenarios provided below. Analyze the facts in the scenarios and develop appropriate arguments/resolutions and recommendations. Support your responses with appropriate cases, laws and other relevant examples by using at least one scholarly source from the SUO Library in addition to your textbook for each scenario. Do not copy the scenarios into the paper. Cite your sources in APA format on a separate page. Submit the paper to the Submissions Area by the due date assigned.
Scenario I: Courts and Alternative Dispute Resolution
Alana Mendes suffered from Alzheimer’s, and was admitted to the Bay Pines Rehabilitation Center. Because of her mental condition, Alana’s daughter, Juanita, completed the admissions paperwork and signed the admissions agreement. The admissions documents included a clause that required parties to submit any disputes for arbitration. When Alana was released from the center four months later, she sued for negligent treatment and malpractice during her stay. Bay Pines moved to require arbitration.
This is a claim of negligent care, not a breach of a commercial contract. Is it ethical for medical facilities to impose mandatory arbitration? Is there really any bargaining over such terms?
Should a person with limited mental capacity be held to the arbitration clause agreed to by the next-of-kin who signed on behalf of that person?
Scenario II: Due Process and ADR
In 2016, a report found extremely high rates of obvious plagiarism in the theses of graduate students in the MBA program in the College of Business at Western State University. Two full-time faculty members and three adjuncts were identified for ignoring their ethical responsibilities and contributing to negligence toward issues of academic misconduct. Assistant Professor Mark Day was one of the five professors identified in the report. The findings were published during a press conference in May 2016. The dean of the College of Business, Derrick Dawson, removed Day's responsibilities for advising graduate students and scheduled him for undergraduate courses for the next semester. Day filed suit in a federal district court against Dawson, the university, and others for violating his due process rights by publicizing accusations about his role in plagiarism without providing him with a meaningful opportunity to clear his name in public.
What does due process require in these circumstances?
Would the outcome be different if a mandatory arbitration clause was provided in Day’s contract and the university filed to dismiss the suit to require arbitration?
Scenario III: Regulatory Agencies and Ethics
Jessica Smith is the vice president of new drug development at Generic Phama, Inc, a pharmaceutical research company in Boston, Massachusetts. One year ago, she filed an application with the Food and Drug Administration (FDA) to obtain approval of a new drug for treating cancer. Smith met Joe Spencer at a convention three months ago and invited him to her room at the hotel. The two parted ways. Spencer worked as the director for approval of new drugs at the FDA. Two weeks later, Spencer wrote Smith a letter on FDA letterhead stating, “It was nice to see your name cross my desk on our company’s application for approval of the new cancer drug. I’d really like to see you again. Why don’t you come visit me in Washington this weekend?”
Smith considered requesting that the petition be referred to another director at the FDA. However, she is concerned that the transfer would delay the approval process for at least a year. Smith’s chief scientist advised her that a key competitor plans to introduce a similar drug on the market in three months.
Are there any legal or ethical barriers to relationships between corporate officers and members of administrative agencies involved in reviewing or regulating corporate activity?
What should she do?
What would you advise her to do if you were head of human resources or legal counsel for Generic Pharma, Inc.
Support your responses with examples.
Sample Solution
Scenario I: Courts and Alternative Dispute Resolution
Analysis
The scenario raises several ethical and legal concerns regarding the use of mandatory arbitration in healthcare settings.
Ethical Concerns
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Informed Consent: Requiring patients or their representatives to agree to mandatory arbitration as a condition of receiving care raises concerns about informed consent. Patients may not fully understand the implications of waiving their right to pursue legal action in court
Full Answer Section
- Access to Justice: Mandatory arbitration clauses often limit or eliminate patients' ability to access the judicial system, potentially hindering their ability to obtain fair compensation for damages caused by negligent care.
- Power Imbalance: The power imbalance between healthcare providers and patients raises concerns about the fairness of mandatory arbitration agreements. Patients may feel pressured to agree to these clauses due to their vulnerability and dependence on healthcare providers.
Legal Considerations
- Federal Arbitration Act (FAA): The FAA generally favors arbitration over litigation. However, there are exceptions, such as when an arbitration agreement is unconscionable.
- Unconscionability: A court may find an arbitration agreement unconscionable if it is one-sided or unfair. Factors to consider include the procedural fairness of the arbitration process, the relative bargaining power of the parties, and the availability of alternative remedies.
- Capacity to Consent: The validity of an arbitration agreement signed by a next-of-kin on behalf of a patient with limited mental capacity may depend on the applicable state law and the circumstances surrounding the agreement.
Recommendations
- Transparency: Healthcare providers should clearly disclose the terms of mandatory arbitration agreements to patients and obtain their informed consent.
- Fairness: Arbitration agreements should provide for a fair and impartial arbitration process, including the right to discovery, representation by counsel, and a neutral arbitrator.
- Alternatives: Healthcare providers should consider alternative dispute resolution methods, such as mediation, that may be more accessible and equitable for patients.
Scenario II: Due Process and ADR
Analysis
The scenario raises questions about due process and the use of mandatory arbitration in employment disputes.
Due Process Concerns
- Public Accusations: The public release of accusations against Assistant Professor Mark Day without a prior opportunity to respond or defend himself raises concerns about his due process rights.
- Reputation Damage: The public nature of the accusations could damage Day's professional reputation and future employment prospects.
- Fairness of Investigation: The adequacy of the investigation leading to the report identifying Day's involvement in plagiarism is also a potential concern.
Mandatory Arbitration
- Contractual Waiver: If Day's employment contract contained a mandatory arbitration clause, his ability to challenge the university's actions in court would be limited.
- Enforceability: Courts may refuse to enforce arbitration agreements if they are found to be unconscionable or if they violate public policy.
Recommendations
- Internal Investigation: Universities should conduct thorough and impartial investigations of alleged academic misconduct, providing accused faculty members with a fair opportunity to respond.
- Transparency: Universities should adopt transparent policies and procedures for addressing academic misconduct allegations, including clear timelines for investigations and decision-making.
- Due Process Protection: Universities should ensure that accused faculty members are afforded due process protections, including the right to notice, the right to be heard, and the right to representation.
Scenario III: Regulatory Agencies and Ethics
Analysis
The scenario raises ethical concerns about the potential for conflicts of interest between corporate officers and members of regulatory agencies.
Ethical Concerns
- Conflicts of Interest: The personal relationship between Jessica Smith and Joe Spencer could create a conflict of interest if Spencer were to review or regulate Generic Phama's new drug application.
- Improper Influence: The letter from Spencer suggests an attempt to influence the regulatory process, which could undermine the integrity of the FDA's approval process.
- Public Trust: Conflicts of interest between industry and regulators can erode public trust in the regulatory process.
Recommendations
- Disclosure Requirements: Both industry officials and regulatory agency personnel should be required to disclose any personal or professional relationships that could create potential conflicts of interest.
- Recusal: Regulatory agency personnel should recuse themselves from reviewing or regulating matters involving companies or individuals with whom they have close personal or professional ties.
- Code of Ethics: Regulatory agencies should have strong codes of ethics that clearly prohibit conflicts of interest and promote ethical conduct among their employees.
Conclusion
The scenarios presented illustrate the complex interplay of ethics, law, and alternative dispute resolution in various settings. Understanding these issues is crucial for making informed decisions and upholding ethical standards in diverse professional environments.