Before founding his own dispute resolution firm in 2021, Andrew Flake was both a commercial litigation partner supporting the firm’s healthcare group and chair of its Healthcare Technology practice. In those roles, Andrew worked and advised on a wide range of complex healthcare and healthcare technology disputes. He has served as an arbitrator and panel member in more than 100 arbitrations and remains passionate about the benefits of ADR in complex disputes for both counsel and their clients, particularly in specialized sectors like healthcare.
Read on as Andrew discusses his approach to arbitration.
Q: Tell us about your background in healthcare law or the healthcare industry.
As an attorney and litigation partner at an AmLaw 200 firm, and one nationally recognized by Chambers for healthcare, I worked for more than twenty years with the full spectrum of healthcare stakeholders—hospitals and health systems, physician practices, employees and executives, and healthcare IT customers and vendors, pharmaceutical and life sciences companies, medical device manufacturers, and health IT vendors.
My litigation practice included a work in arbitral forums and both state and federal courts across the country. As chair of the firm’s Healthcare Technology industry team, I also advised on and assisted with any number of interesting technology issues, from EMR implementation disputes, to telehealth, to cybersecurity and data breach matters—in addition to working with healthcare stakeholders on other litigation—which gave me an understanding of the business concerns that underlie so many of their cases.
Q: What types of healthcare disputes do you typically handle as an arbitrator or mediator?
I’ve been fortunate to have served as both chair and panel member in a fairly wide range of cases, many of them payor-provider disputes but also those involving coverage and network inclusion issues, government contracting in the healthcare space, and vendor-provider disputes, including healthcare IT. As a member of AAA’s Mediation Panel, I have the pleasure of working with counsel on similar types of matters to get them resolved prior to final hearing.
Q: What drew you to ADR work in the healthcare space? What do you value most about serving as a neutral on the AAA's Healthcare Panel?
Serving on AAA’s Healthcare Panel has been fantastic. We have a proactive case management team who are always working to innovate – to keep us connected and talking about trends and best practices. As an arbitrator, I also value the overall high level of professionalism, collegiality, and industry expertise that we see from healthcare counsel, as well as the opportunity to work nationally with other healthcare arbitrators on our panels. And for someone who comes from and thrives in a complex commercial background, healthcare offers a rich set of statutory and regulatory issues to review, a diverse set of business and industry issues, and the need for in-depth analysis and review. It’s important work, and very rewarding.
Q: How has your experience shaped the way you approach healthcare arbitration or mediation?
My background in complex litigation is a great fit for healthcare disputes, where case management and the evaluation of a very detailed record are critical. I’ve learned how to help counsel find areas of agreement on procedure, case timing, and the modalities of discovery and evidence preservation. And knowing about the business realities that healthcare stakeholders deal with helps even more with delivering a discovery process that gets the key issues decided without disruption to their operations and in a cost-effective way. On the mediation side, that same experience really helps in working with parties to make sure each side has sufficient information from the other to conduct an effective and principled negotiation.
Q: What advice do you have for parties preparing for arbitration or mediation in complex healthcare disputes?
Three key suggestions: First, take advantage of the opportunity, working through your case manager, to talk with candidates for your panel about their approach to the case. Second, where very technical issues or complex regulatory issues are involved, consider the earlier engagement and use of experts to prepare the panel, along with joint proposals on those subjects. And third, when it comes to issues like the use of sampling and how expert testimony is presented, ask the panel about its own preferences and what it finds effective; our healthcare arbitrators have a wealth of case experience and will welcome that kind of dialogue with the parties.