Dissolution of Marriage Summons Incorporates ADR!

Wife sues Husband for Dissolution of Marriage – not unusual. Wife has the Summons published in the St. James Plaindealer newspaper – not unusual. The Summons contains language encouraging the parties to participate in ADR – unusual!! Should we adopt this Minnesota procedure in Florida? Take a look at Paragraph 4 of the Summons – very interesting!! Something to think about for the New Year!

My best wishes to you and your family for a Happy, Healthy, Safe, and Prosperous New Year with lots of laughter!

To email me, click Perry S. Itkin

Judge’s Contact with ADR Firm Required Judge’s Disqualification

Florida ADR firms that discuss possible employment or affiliation as a dispute resolution neutral with a judge prior to that judge’s actually leaving the bench need to be mindful of the consequences for the judge while she or he is still actively presiding over cases as this article in the Metropolitan News-Enterprise illustrates. What impact, if any, might this have on Florida’s senior judges who mediate or those judges who are about to retire and plan to mediate?

To email me, click Perry S. Itkin

Mediation and Brainwashing

In this article appearing in the Birmingham News all 10 plaintiffs in a lawsuit that alleges brainwashing by a religious group have been ordered to appear at the mediation conference. The allegations include fraud, misrepresentation, undue influence, intentional infliction of emotional distress and false imprisonment. The plaintiffs claim they were enticed by the religious group and their assets drained. If you were the mediator, what “thoughts” would you have about proceeding?

To email me, click Perry S. Itkin

Who Was The Real “Winner” in Mediation?

In this Dayton Beach News-Journal: East Volusia mediation article, the marina owners who sued the Town of Ponce Inlet maintain they won in mediation and the Town also maintains it won. Still, there’s another “winner”. So who, if anyone, lost? Is this a “win-win-win” mediation?

To email me, click Perry S. Itkin

Aggressive Settlement Demand May Lead to Claim of Extortion!

Florida’s new Mediation Confidentiality and Privilege Act, Chapter 44, Florida Statutes, contains specific references to the commission of a crime during mediation. For example, F.S. 44.403(1), in defining “mediation communication”, provides “The commission of a crime during a mediation is not a mediation communication.” Also, F.S. 44.405(4)(a)(2) provides that there is no confidentiality or privilege for any mediation communication that “is willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence . . . .”

This article in the Metropolitan News-Enterprise illustrates a California case where a lawyer is being sued as a result of settlement demands which allegedly exceeded bona fide attempts at resolution. This elicits the issue of whether an aggressive settlement demand may rise to the level of extortion. If this type of conduct occurred during mediation in Florida could it also lead to a claim of “extortion” and hold other consequences for the lawyer? Extortion is a crime in Florida, F.S. 836.05.

To email me, click Perry S. Itkin

Merry Christmas and A Christmas Present!

Here’s a Christmas present - a very creative Texas appellate brief clearly demonstrating “outside the box” thinking on “How the Grinch Stole Christmas Vacation.”

My best wishes to you and your family for a very Merry Christmas!

To email me, click Perry S. Itkin

Another Reason Why People Settle.

In an earlier post on December 10th, we identified a reason why people settle as the “judicial facts of life”. In this article in the Bowling Green Daily News, this lawyer and his wife paid $150,000.00 to settle a lawsuit involving his “over” billing during a 14 year period. Was the settlement really motivated to avoid the cost of defense or was it the potential grand jury investigation or both or something else? By the way, the mediator received the settlement funds totaling $260,000.00 [the difference was paid by the lawyer's 2 former law firms] to deliver to the Plaintiff. Would you be comfortable as the mediator in accepting that role?

To email me, click Perry S. Itkin

Agreement Drafting – “Time is of the essence” – A Cryptic Phrase?

In Arvilla Motel, Inc. v. Shriver, 29 Fla. L. Weekly D 2728 [Fla. 2nd DCA 2004] the Second District Court of Appeal provides an interesting discussion on what this cryptic stock phrase means in answering the question “What performance at what time is a condition of which party’s duty to do what?” So, having this knowledge [after reading the case, of course], what is the best way to draft a mediation agreement if “Time is of the essence”?

To email me, click Perry S. Itkin

More on Mediation’s “Cold Case” - A Follow Up.

In an earlier post on December 3rd we identified a 40 year old dispute which is being mediated between the cities of Ormond Beach and Daytona Beach. In this follow up in the Daytona Beach News-Journal: East Volusia , one City Attorney said “I think we kind of surprised each other”. Read why and see some of the creative options developed in this multi-session mediation.

To email me, click Perry S. Itkin

Mediation Conference Physical Safety – And Afterwards!

Florida Rules for Certified and Court-Appointed Mediators Rule 10.420(b)(5) Adjournment or Termination provides:

A mediator shall terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

If the mediator terminates as a consequence of endangerment, then what? What about physical safety after the mediation conference? Should we be concerned what happens then? Read this story in the San Mateo Daily Journal to expand our thinking and learn what this estranged husband did just before allegedly stabbing his wife to death after a mediation conference.

To email me, click Perry S. Itkin

What is a Neutral and Impartial Third Person? A Mediation Lesson Learned from a Criminal Case.

First, some essentials:

Florida Rules for Certified and Court-Appointed Mediators Rule 10.210 Mediation Defined states, in part:

Mediation is a process whereby a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. [Emphasis added.]

Rule 10.330 Impartiality, [a] Generally, provides that “A mediator shall maintain impartiality throughout the mediation process”. The Committee Note to this Rule explains further that

During the mediation, a mediator shall maintain impartiality even while raising questions regarding the reality, fairness, equity, durability and feasibility of proposed options for settlement. In the event circumstances arise during a mediation that would reasonably be construed to impair or compromise a mediator’s impartiality, the mediator is obligated to withdraw.

We can learn a practical lesson about neutrality and impartiality by reading the 5th District Court of Appeal case Sears v. State of Florida, 2004 Fla. App. LEXIS 19327 [Fla. 5th DCA 2004] to draw a parallel between our obligations as mediators and those of a judge in the same ethical context. Mediators, just like judges, must scrupulously adhere to these ethical standards, otherwise. . .

To email me, click Perry S. Itkin

When Does 6 + 6 Equal 57.105?

The Third District Court of Appeal in O’Hara Gallery, Inc. v. Nader, 2004 Fla. App. LEXIS 19136 [Fla. 3rd DCA 2004] reversed an order denying attorney's fees sought by the plaintiff against the defendant because defendant prolonged the case before finally conceding that there was no viable defense. Among the long-drawn-out procedures was mediation which was scheduled 6 times and cancelled 6 times in a 9 month period. The court held attorney’s fees should have been awarded under F.S. 57.105.

To email me, click Perry S. Itkin

Mediating Between Cultures – More than Translating Words!

In criminal law, a cultural defense – or the assertion that a person's different cultural background influenced his or her actions – can be used as a mitigating factor in plea bargaining or sentence reduction. It’s an issue for mediators too, in that we are responsible for understanding how cultural issues may arise in mediation and affect a party’s negotiation style, and their ability or willingness to engage in mediation.

Cultural issues have catapulted to the front page in the case of Southeast Asian immigrant charged with killing six white hunters in Wisconsin. According to this Madison, Wisconsin's Capital Times news story, he comes from a community of Laotians known as Hmongs and for a very interesting insight into an Hmong’s anguish over her role as a “cultural” mediator read this article in Asian Week.

To email me, click Perry S. Itkin

Hyperbole - He Settled All Cases He's Mediated! How Many is That?

Giving new meaning to “all cases”, John Mitchell Stewart, Esquire, has written an interesting article in the November, 2004 issue of The Florida Bar Trial Lawyers Section Newsletter, The Advocate. It's titled “A New Mediator's Guide to Settle All of Your Mediated Disputes” and gives a litigator-to-mediator transitional insight into the mediation process. Take a look - it’s intended to be helpful.

To email me, click Perry S. Itkin

Condominium Ombudsman Plans to Use Mediation - Without Lawyers!

This article in the Sun-Sentinel announced that the Governor has appointed a retired Fort Lauderdale doctor and lawyer to serve as the first condominium ombudsman in the nation, a position that will require him to educate more than 1 million condo owners and to resolve disputes with their 17,000 associations. Watch for homeowner associations to be added in the next Legislative session.

Rather than have formal arbitration hearings, he plans to have informal mediation hearings and probably won't allow attorneys on either side. Imagine that! Here's the story.

To email me, click Perry S. Itkin

Scott Peterson - Mediator?

Florida Rules for Certified and Court-Appointed Mediators Rule 10.110 Good Moral Character provides generally that “No person shall be certified by this Court as a mediator unless such person first produces satisfactory evidence of good moral character. . . .”

The primary purpose of this requirement is to ensure the protection of the participants in mediation and the public, as well as to safeguard the justice system.

So, Scott Peterson, having intervened to calm things down in a dog fight [between his wife's dog and a neighbor's dog] has been described by sentencing phase witnesses as a mediator and problem solver in this story on KCAU-TV .

Remember, he was convicted of murdering his wife and their unborn child - good moral character? Scott Peterson - a mediator? Not really. Characterize him as something else!

To email me, click Perry S. Itkin

“Tell It Like It Is”! – One Reason Why People Settle.

Fourth District Court of Appeal Chief Judge Farmer, in his concurring opinion in All About Cruises, Inc. v. Cruise Options, Inc., 2004 Fla. App. LEXIS 18778 [Fla. 4th DCA 12.8.2004], sets out the realities of allowable discovery of personal financial information in civil cases and overloaded court dockets which “press litigants to settle”. Are these judicial “facts of life” tools for mediators?

To email me, click Perry S. Itkin

Apocalypse Now - New Meaning to the Word ‘Amendments’!

The Daily Business Review has an interesting article on the aftermath of the Amendments [the Florida Supreme Court has given new meaning to the word “amendments”, i.e. repeal] to the Florida Rules of Workers’ Compensation Procedure and you can read it here - a good follow up to today’s earlier post on this topic.

To email me, click Perry S. Itkin

Workers’ Compensation Mediation – Now What?!?

Simply put, the Florida Supreme Court has prospectively repealed the Florida Rules of Workers’ Compensation Procedure effectively immediately [December 2, 2004]! Part II of these Rules was devoted to Mediation Procedures. Part I [Trial Proceedings] contained references to mediation and Part III [Forms] contained, well, forms regarding mediation.

The Court concluded that these Rules were an unconstitutional encroachment on the power of the executive branch to adopt rules of procedure for its own agencies. You may want to read the opinion, Amendments to the Florida Rules of Workers’ Compensation Procedure, 29 Fla. L. Weekly S 734 (Fla. 2004). The rules are “amended” right out of existence!

To email me, click Perry S. Itkin

The Fear Factor Leads to Settlement in a “Shade Meeting”!

This story in the Sun-Sentinel superbly illustrates the “shade meeting” principle of settlement discussions – a legislatively created exception to the Government in the Sunshine Law which permitted any governmental agency, its chief executive and attorney to meet in private if the agency is a party to litigation and the attorney desires advice concerning settlement negotiations or strategy. F.S. 286.011(8).

Note that the confidentiality privilege of the communications made during a mediation conference still is applicable and the court reporter’s transcript of the attorney-client session becomes a part of the public record upon conclusion of the litigation.

Read the story to learn how the fear factor motivated settling in the “shade”.

To email me, click Perry S. Itkin

Parenting Coordinators, Domestic Violence and Mediation – An Update!

Last month, The Committee on Judiciary of the Florida Senate has issued their Interim Project Report 2005-145 on Parenting Coordinators and Domestic Violence and it contains many references to mediation. The Report concludes with:

The Legislature may wish to revise and re-enact its parenting coordination legislation to ensure that it is available as another tool for all judges to use to reduce conflict in parenting disputes and thereby reduce post divorce litigation.

What's the debate about and what's in store for the future?

To email me, click Perry S. Itkin

The Authorized Practice of Mediation. What’s That?

The Association for Conflict Resolution’s Board of Directors has issued a draft Authorized Practice of Mediation (APM) report and is soliciting member review and feedback on this proposed policy statement. It takes a principled approach to defining mediation practice and to preserve it as a distinct area of professional practice. It’s interesting. Take a look!

To email me, click Perry S. Itkin

Mediation’s Version of “Cold Case Files”!

Ormond Beach and Daytona Beach city attorneys have a December 10th date with a mediator in their ongoing struggle to resolve a 40-year-old water and sewer dispute. Was an innovative, tentative agreement legal and enforceable? Here’s an article from The Daytona Beach News-Journal: East Volusia covering the “cold case” as it warms up!

To email me, click Perry S. Itkin

It Has Appeal! A Court Ordering Specific Performance of a Mediation Agreement.

The trial court granted the contractor’s motion to enforce the mediation agreement which provided for the developer to file a voluntary dismissal of “all claims against the parties making payments and/or being released.” The agreement was conditioned upon the contractor being insolvent and no fraudulent transfers. A dispute arose over these conditions and the developer refused to file the voluntary dismissal. The appellate court held that the trial court order enforcing the agreement was appealable in Orchid Island Properties, Inc., et al. v. W.G. Mills, Inc. of Bradenton, et al., 2004 Fla. App. LEXIS 18155 [Fla. 4th DCA 2004].

Happy Holidays! A Marketing Present for Mediators!

Here’s a present for you for the Holidays! There’s a wonderfully useful and informative weekly “e-zine” called Marketing Monday [guess when it is distributed]. It’s free and contains marketing tips and advice for mediators and arbitrators. It is from Golden Media, a marketing firm for the conflict resolution profession.

Use the ‘contact us’ button at Golden Media to subscribe to Marketing Monday. Also, behind “Door Number 3” is a free [that’s what I’m told] Marketing Work Book designed specifically for “Resolutionists”. Well, I’m kidding about the door and serious about the Work Book. You should receive the Work Book as Golden Media’s thank you for subscribing.

Happy Holidays!

To email me, click Perry S. Itkin

“But I Don’t Want to Go to Mediation!” What we can learn from England?

Florida Rules of Civil Procedure Rule 1.700 (b) provides:

(b) Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration if:

(1) the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law;
(2) the issue presents a question of law only;
(3) the order violates rule 1.710(b) or rule 1.800; or
(4) other good cause is shown.

Examples of what might satisfy “other good cause” can be found in the recent English Court of Appeal opinion Halsey v Milton Keynes General NHS Trust: Steel v (1) Joy (2) Halliday [2004] EWCA (Civ) 576. The Court of Appeal set out a non-exhaustive list of factors which may be relevant to the question of whether a refusal to mediate (i.e. dispense with mediation) is reasonable:

• the nature of the dispute
• the merits of the case
• the extent to which other settlement methods have been attempted
• whether the costs of the ADR would be disproportionately high
• whether any delay in setting up and attending the ADR would have been prejudicial
• whether the ADR had a reasonable prospect of success.

Interesting?!?

To email me, click Perry S. Itkin

Be Careful What You Ask For! Mediation and F.S. 57.105 Sanctions

The parties’ mediated marital settlement agreement provided that each would be responsible for his or her own attorney’s fees – not unusual. The Wife filed a Motion to Disgorge Fees from the Husband’s attorney – not so usual. Their mediation agreement formed the basis for an award of attorney’s fees to the Husband's attorney pursuant to F.S. 57. 105 as sanctions in Stok, et al. v. Moller, et al., 2004 Fla. App. LEXIS 17876 (Fla. 3rd DCA 2004).

To email me, click Perry S. Itkin

Mediating with Hurricanes? Well, not exactly.

Florida’s Department of Financial Services established a mediation program to resolve disputes between insurers and policyholders as a result of the damages to residential property caused by this season’s hurricanes. Here’s the FLDFS Consumer Brochure and a recent Sun Herald article on the program’s mediation office in Punta Gorda and progress thus far.

To email me, click Perry S. Itkin

Happy Thanksgiving!

My best wishes to you and your family for a very Happy Thanksgiving!

To email me, click Perry S. Itkin

Mediation Fees and Expenses – Are These Taxable Litigation Costs?

The Florida Bar Civil Procedure Rules Committee has filed with the Florida Supreme Court a report proposing new Statewide Uniform Guidelines for Taxation of Costs in Civil Actions to replace the existing guidelines. Comments must be filed with the court on or before December 1, 2004. Maybe mediation costs & fees are taxable. This should “appeal” to the 5th District Court of Appeals – Elder v. Islam, 869 So.2d 600 (Fla. 5th DCA 2004)!

To email me, click Perry S. Itkin

"Authority", You'd Better Have it in Small Claims Mediation Too!

The Small Claims Rules Committee invites comment on the proposed two-year cycle amendments to the Florida Small Claims Rules. The proposed amendments will be filed with the Supreme Court of Florida by February 1, 2005. Interested persons have until December 1, 2004, to submit comments to the Hon. Pauline Drayton, Duval County Courthouse, 330 E. Bay St., Jacksonville, FL 32202-2921.

Here are the proposed amendments pertinent to mediation:

• Rule 7.090(f) proposes to provide for sanctions against a party for failure to appear at mediation with full authority to settle.
• Form 7.322 [Summons/Notice to Appear for Pretrial Conference] also addresses "full authority to settle".
• Form 7.350 is entirely new and provides for "Corporate Authorization to Allow Employee to Represent Corporation at any State of Lawsuit", including guess what [I'm confident you know the answer and you'll have to read the proposed amendments to be sure].

To email me, click Perry S. Itkin

A Mediation Scheduling Dilemma – Ask Kobe Bryant!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.340 Scheduling Mediation, provides:

A mediator shall schedule a mediation in a manner that provides adequate time for the parties to fully exercise their right of self-determination. A mediator shall perform mediation services in a timely fashion, avoiding delays whenever possible.

Could the full exercise of party self-determination be affected by having completed some, all, or none of the discovery, i.e. having taken depositions or not, and the impact that has on informed decision-making? [I know, you've not been confronted with that mediation ethical dilemma - right?!?]

Read this Rocky Mountain News article to “discover” the mediation scheduling positions taken in the sexual assault civil suit filed against Kobe Bryant.

To email me, click Perry S. Itkin

Florida Supreme Court has a New Website!

On November 19, 2004, under the leadership of Chief Justice Barbara J. Pariente, the Florida State Courts launched their new website at www.flcourts.org. On this same date, the Florida Supreme Court launched their new website at www.floridasupremecourt.org.

The Florida Family Law Forms are located on the Florida State Courts website and they are interactive and can be completed online or saved on a hard drive and completed there! How about that?!?

These new sites replace the former combined Florida State Courts/Florida Supreme Court website.

Take a look!

Perry S. Itkin

Good Move by the Mediator; Not so Good by the Disputing Party!

In Poling v. Palm Coast Abstract and Title Company, Inc., 882 So.2d 483 (Fla. 5th DCA 2004) the trial court entered an order requiring, among other things, that the parties attend mediation ["Mediation is ordered" - emphasis in the original] and setting a trial date. The Polings did not attend mediation, nor the trial for that matter.

The Polings notified the mediator by fax that they would not attend mediation until Palm Coast complied with their outstanding discovery demands. [I know, you've never heard that before!] The Mediator notified the Polings that they must:

1. Reschedule the mediation before the trial;
2. Contact the opposing party;
3. Contact the court.

Good mediator move in fulfilling their ethical obligations to the parties, Florida Rules for Certified and Court-Appointed Mediators 10.300, et seq., and to the court, Florida Rules for Certified and Court-Appointed Mediators 10.500, et seq.

The Polings did nothing -- a bad move as you will see when you read the opinion!

Perry S. Itkin

Did you know it’s not “Elder Abuse”; it is . . . ?

Many mediators believe that Chapter 415, Florida Statutes, pertains to the mandatory reporting only of “Elder Abuse”. Actually, the correct terminology is abuse of “Vulnerable Adults”, a much broader concept, as reflected in F.S. 415.1034 Mandatory reporting of abuse, neglect, or exploitation of vulnerable adults; mandatory reports of death, and defined as:

“Vulnerable adult” means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunctioning, or brain damage, or the infirmities of aging. F.S. 415.102(26).

The new Mediation Confidentiality and Privilege Act in F.S. 44.405(4)(a)(3) provides there is no confidentiality or privilege for any mediation communication “that requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report. . . .” [Emphasis added.]

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.360(a) addresses the scope of confidentiality:

A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required by law. [Emphasis added.]

A mandatory report is a “disclosure required by law”. The mandatory report is made to The Department of Children and Family Services’ Central Abuse Hotline, 1-800-96ABUSE.

Perry S. Itkin

When is a word virtually “meaningless”?

Florida Rule of Civil Procedure 1.730(b), Florida Family Law Rule of Procedure 12.740(f), and Florida Rule of Juvenile Procedure 8.290(o) all require that any mediated agreement be reduced to writing. Mediators have obligations to:

• ensure that these Rules are complied with [Florida Rules for Certified and Court-Appointed Mediators 10.520 Compliance with Authority];
• cause the terms of any agreement reached to be memorialized appropriately [Florida Rules for Certified and Court-Appointed Mediators Rule 10.420 (c) Closure]; and
• discuss with the parties and counsel the process for formalization and implementation of the agreement [Florida Rules for Certified and Court-Appointed Mediators Rule 10.420 (c) Closure].

Although not a mediation case per se, Swartsel v. Publix Supermarkets, Inc., 882 So. 2d 449 [Fla. 4th DCA 2004] contains some wonderful guidance for drafting clauses covering the concept used in some mediation agreements pertaining to the creation and execution of a “confidential settlement agreement” and general release. The “Devil is in the Details”. Oh, this case will also answer the question posed above.

Perry S. Itkin

Proposed Amendments to Florida Family Law Rules of Procedure Which Impact Family Mediation

The Family Law Rules Committee in its Fast-Track Amendments Report to the Florida Supreme Court has recommended that the Supreme Court adopt certain changes to the Florida Family Law Rules of Procedure. The changes impacting Family Mediation [pages 33-36 of the Report] include:

Rule 12.740. FAMILY MEDIATION (c) Limitation on Referral to Mediation. When the mediator's fee is not established under section 44.108, Florida Statutes, or when there is no written agreement providing for the mediator's compensation, the mediator shall be compensated at an hourly rate set by the presiding judge in the referral order. The presiding judge may also determine the reasonableness of the fees charged by the mediator.

RULE 12.741. MEDIATION RULES (b) General Procedures. (2) Sanctions. If a party (A) fails to appear at a duly noticed mediation conference without good cause, or (B) violates any confidentiality provision under section 44.405, Florida Statutes, the court upon motion shall impose sanctions, including an award of mediator and attorneys' fees and other costs, against the party.

Perry S. Itkin

Proposed Revisions to Florida's Mediator Certification Qualifications

The current issue of The Resolution Report is a special issue that focuses on the latest project of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy -- the proposed revisions to the initial qualifications required to obtain certification as a mediator by the Florida Supreme Court. The Committee is very interested in comments on the proposals which have not yet been submitted to the Supreme Court for consideration.

You can send your comments to the Committee c/o the Dispute Resolution Center by one of the following methods:

• E-mail to: presss@flcourts.org
• Fax to: (850) 922-9290
• Mailing address: 500 S. Duval Street, Tallahassee, FL 32399

Comments are due by December 17, 2004.

Perry S. Itkin

Application of Florida Rules for Certified and Court-Appointed Mediators to Certified and Non-Certified Mediators

The Florida Rules for Certified and Court-Appointed Mediators apply to any mediation conducted by a Florida Supreme Court certified mediator and to any court-ordered mediation, even if conducted by a non-certified mediator by agreement of the parties. The general standards (for example, integrity, advertising, and good moral character) will be applicable to certified mediators at all times while the applicability of the specific mediation standards to any given situation will depend on whether the activity is “mediation.” Read the latest MEAC Opinion 2004-003.

Perry S. Itkin

Private Mediators for 11th Judicial Circuit Court of Appeals Mediations

Eleventh Circuit Rule 33-1(g) provides that upon agreement of all parties, a private mediator may be employed by the parties to mediate an appeal that has been selected for mediation by the Kinnard Mediation Center (KMC). Persons employed as private mediators under the rule are required to follow the Private Mediator Procedures as set forth by the KMC.

Perry S. Itkin

"3 Strikes, You're Out" Med-Mal Amendment & Unintended Consequences for Mediators

According to an attention-grabbing story in the current ABA Journal eReport by Siobhan Morrissey, Florida's new Constitutional Amendment 8, the "three strikes, you're out" medical malpractice amendment, may have the unintended consequence of increasing the number of medical malpractice lawsuits filed, resulting in more settlements. Is this a new area for medical malpractice "settlement specialists"?

Perry S. Itkin

Coercion at Mediation and Beyond

In Sharick v. Southeastern University of the Health Services, Inc., et al., Case Number 3D03-2949 [Fla. 3rd DCA 11.10.2004], the client maintained that at the court ordered mediation, not only did his own attorney, but also the mediator [a former circuit court judge] attempted to coerce him into accepting a settlement. The attorney, who had been handling this case for over ten years on a contigency fee basis, requested the trial judge to appoint a guardian ad litem [another former circuit court judge] for his client since the offer made at mediation was "beyond reasonable, would be one hundred percent totally impossible to achieve in the imminent retrial on damages, and [that] no reasonable competent individual would have refused." Read what happened after the attorney accepted the settlement proposal and the client maintained the attorney did not have the authority to settle on his behalf.

Perry S. Itkin

Florida's New Mediation Confidentiality & Privilege Act

Effective July 1, 2004, Florida has adopted a new Mediation Confidentiality and Privilege Act [F.S. 44.401-44.406]. The prior law [F.S. 44.102 (3) and (4)] did not provide for confidentiality and privilege in non court-ordered mediations. In an effort to address this inconsistency and bring clarity to the issue of confidendiality and privilege in mediation the new statute was adopted.

The overall structure of the statute is divided into four main parts:

• Scope - identifying those types of mediations to which the statute applies;
• Definitions - providing definitions for mediation communication, mediation participant, mediation party, mediator and subsequent proceeding;
• Duration of mediation - establishing when mediation begins and when it ends in both court-ordered and non court-ordered mediations;
• Confidentiality of mediation communications; the privilege; exceptions. A completely new cause of action has been created to provide a remedy to anyone who is damaged as a result of a breach of confidentiality by a mediation participant.

Perry S. Itkin

Welcome to Florida Mediator

Welcome to Florida Mediator - Florida's first mediator weblog!

This web log began on November 10, 2004. Inspired by other blogs, Florida Mediator focuses on issues of interest to Florida's Certified Mediators. Generally, Florida Mediator will address, with some commentary, significant issues, noteworthy court opinions, legislation, court rules [proposed and approved], and ethical opinions which impact the practice of mediation in Florida. Periodically Florida Mediator will also identify news and related items of interest relating to the practice of mediation in Florida.

While this site will naturally appeal more to Certified Florida Mediators and those seeking information about Florida's mediator certification protocol, the items posted and discussed will hopefully be of value to anyone, from anywhere.

Florida Mediator is a personal site, designed and maintained by me for my enjoyment and yours. All discussion of legal issues on this site is general commentary only and is not legal advice. Please do not expect the creation of an attorney-client relationship. You can contact me by clicking on my name below any of my posts, and, again, please do not expect any email sent to me or to Florida Mediator to create an attorney-client relationship.

You are welcome to send tips, thoughts, references, and stories that might be added, or just to say hello!

Finally, let me emphasize: This is a personal web site offering commentary, not legal advice; for legal advice, please consult with an attorney specifically for that purpose. All statements published on, or referenced by, this site should be attributed solely to the individual who originally made them and not to anyone else.

Perry S. Itkin