“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).

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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