Perspectives from four JAMS neutrals
The COVID-19 pandemic and the subsequent rush to develop life-saving vaccines have posed enormous challenges for practitioners in all areas of the life sciences and health care industries, including those whose area of focus pertains to resolving disputes in these sectors. Meeting these and other emerging challenges in the life sciences field, and resolving the disputes that will inevitably arise as a result of them, will require creative solutions.
What kinds of disputes are we talking about? JAMS neutral Gregory Miller predicts a rise in cases pertaining to care in nursing homes during the pandemic. While these cases might be difficult to prove, says Miller, “Enterprising class action lawyers may someday come up with claims based on all the deaths that occurred in nursing homes.” Judge Elizabeth Laporte expects a surge in disputes pertaining to the development of COVID vaccines and treatments. These might relate to collaborations between companies where “one company accuses another of breaching an NDA,” says Laporte. International cases might also emerge—for example, “if a foreign company or its agents take U.S. knowhow, trade secrets or other technical information in the life sciences or other spheres.” And, says Laporte, there could be “fights over patents, sometimes essential patents, or issues about trade secrets.” With regard to patents, Judge James Ware agrees. “I think the pandemic will start to change some of our attitudes about who really ‘owns’ technology,” he says. “More and more scientific developments will be brought forward with the idea that they belong to us all and should be freely used by all.” And Judge Jan Symchych foresees disputes around mask and vaccine mandates. “That’s constitutional law,” she explains, “because there’s a competing interest in individual freedoms versus public health.”
These JAMS neutrals see ADR as a powerful tool to revolve these (and other) types of disputes in the life sciences arena. “There used to be a myth that these cases never went to mediation, and that myth is busted apart,” says Symchych. “Now ADR has become a go-to.” Ware agrees. “Quite frankly,” he says, “I think litigation is becoming the alternative dispute resolution approach, and what we're calling ADR—mediations and arbitrations—is predominant.” This is in part because of substantial backlogs in civil courts due to the pandemic. But, says Laporte, “It can be advantageous for parties to resolve disputes out of court to avoid publicity, expense and also the cloud that often appears over what the parties are seeking to achieve, for which litigation would be at best a distraction.” Symchych notes, “As long as we keep developing folks that have really meaningful knowhow, ADR will remain a force in the life sciences area.”
As mentioned above, disputes in the life sciences sector will require creative solutions, and creative solutions can benefit from diverse views. “We've seen social science research that shows that the more diverse the team is that contributes to making a decision, the better the decision is,” notes Laporte. Symchych agrees. “The more viewpoints you have around a table, and the more brains you have around a table—people who might have different upbringings—the better your overall collective thought process will be.” So it’s a good practice for organizations in this (or any) area to partner with diverse neutrals to resolve disputes. One way to achieve this, says Miller, is to “apply the Rooney Rule that is used in the NFL,” which requires NFL teams to interview at least one minority candidate for all head coaching and senior-leadership positions. In other words, “A company might say, ‘If we’re considering five firms, we want those firms to present a diverse trial team.’”
Of course, it helps if the organization itself is also diverse. But unfortunately, diversity is often lacking in life sciences companies—especially at the highest levels. As one example, statistics from a recent survey showed that only about 16%* of board members at pharmaceutical companies were women or racially diverse. This needs to change, says Ware. “It will be unfortunate if we go into the future with the kind of hobbled attitudes that have plagued us in the past about the contributions of people based upon race or nationality or gender.” He continues: “The scientific world is color blind, is gender blind, is nationality blind. It is a wonderful world of collaboration among scientists. Companies need to catch that spirit.” Miller agrees but warns, “It's a systemic problem, and it’s not going be solved overnight.”
Many larger companies in the life sciences sector have launched initiatives to create more diverse and inclusive workplaces. But there’s still more work to be done—especially in smaller companies with fewer resources. One way for these types of organizations to improve diversity and inclusion, says Miller, is to reconsider their hiring practices. That is, instead of limiting themselves to candidates from certain universities or backgrounds, “I think everyone has to take a broader look at who's going to turn out to be an effective candidate in order for there to be some significant improvement in diversity.” Miller adds, “When I had my own firm, a good personal story told me as much about a person as their academic achievements.” Ware concurs. “I've often thought that instead of having job descriptions as the road map for what people should do, companies should use people descriptions.” Symchych offers even more practical advice: “Because big companies have put a priority on diversity, and already have more women and minorities, they provide a great recruiting base for smaller companies.” For her part, Laporte suggests looking to external organizations for help, citing ChIPs, a Silicon Valley–based nonprofit whose mission is to advance the careers of women in technology, law and policy, as one example.
Building an inclusive workplace, and partnering with diverse neutrals to resolve disputes, can help companies in the life sciences sector meet today’s challenges as well as tomorrow’s. But beyond that, says Symchych, “It's basic human decency to increase diversity every chance we get.”