Friday, December 31, 2004

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

Thursday, December 30, 2004

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

Wednesday, December 29, 2004

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

Tuesday, December 28, 2004

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

Monday, December 27, 2004

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

Saturday, December 25, 2004

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

Friday, December 24, 2004

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

Thursday, December 23, 2004

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

Wednesday, December 22, 2004

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

Tuesday, December 21, 2004

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

Monday, December 20, 2004

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

Friday, December 17, 2004

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

Thursday, December 16, 2004

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

Wednesday, December 15, 2004

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

Tuesday, December 14, 2004

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

Monday, December 13, 2004

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

Friday, December 10, 2004

“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

Thursday, December 09, 2004

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

Wednesday, December 08, 2004

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

Tuesday, December 07, 2004

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

Monday, December 06, 2004

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

Friday, December 03, 2004

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

Thursday, December 02, 2004

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].

Wednesday, December 01, 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