Mediators Are “Violence Interrupters”

According to this article from the BBC News [International Version], a Chicago organization named “CeaseFire” has been created to mediate gang conflicts. The mediators are former gang members who are referred to as “Violence Interrupters” – an interesting moniker.

All to say, my best wishes to you and your families for a Happy, Healthy, Prosperous and, especially, Safe New Year! Thank you for making Florida Mediator a part of your reading this year. “See” you next year – keep smiling!

To email me, click Perry S. Itkin.

New Multijurisdictional [MJP] Practice Rules Impact Mediation

According to this article in The Florida Bar News, three new rules that deal with multijuristictional law practice in Florida become effective January 1, 2006. The article presents some common questions with answers including one that focuses on mediation. We should know about this. Take a look [it’s the third question from the end of the article].

To email me, click Perry S. Itkin.

“Marathon Mediation” – Potential For Coercion

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(b) Self-Determination, Coercion Prohibited provides “A mediator shall not coerce or improperly influence any party to make a decision or unwillingly participate in a mediation.”

Rule 10.420(b)(2) Conduct of Mediation, Adjournment or Termination provides “A mediator shall adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties. . . .”

Generally, a mediator should not conduct a mediation conference which in any way would appear to coerce any party [but, you knew that!] – this would include the duration of the mediation and whether or not party [or their counsel or another mediation participant] expresses concern about the length of the conference. For instance, would a prolonged mediation conference have the unintended consequence of depriving a party of effective or meaningful representation of counsel?

Take a look at Shultheis v. Gotlin, 2005 Fla. App. LEXIS 20148 [Fla. 5th DCA 2005] for an analogous situation where an appellate issue [it starts on page 6, middle paragraph, of the opinion] involved a jury required to work a “marathon 16-hour workday” and the totality of the circumstances test. What mediation lessons can we learn from this opinion?

To email me, click Perry S. Itkin.

What Does Pastrami Have To Do With Mediation?

Marathon mediations – you may have participated in one or more, right?!? So, is your approach starve them until they settle – of course not! In providing the venue and environment for mediation you will attend to the dining [okay, maybe not high end cuisine] needs of the mediation participants. How about a 29 hour mediation? What would you serve or order in? According to this article in the New York Post, the recent transit strike in New York was settled over pastrami sandwiches! Pickles or chips anyone? The article presents some interesting insights into the negotiation techniques used by the mediators.

To email me, click Perry S. Itkin.

More Holiday Fun!

The week between Christmas Day and New Year’s Day is usually kind of quiet. So, in order not to lose any mental acuity, put on your thinking cap and enter [for free] the “Fun ADR Contest” at Dina Beach Lynch’s Mediation Mensch blog. The deadline is December 31st. Good Luck!

Thank you, too, to Dina for her very nice compliments about Florida Mediator!

To email me, click Perry S. Itkin.

Family Mediation – A New Meaning!

According to this article in the New York Daily News, the new acting boss of the Gambino crime family, John “Jackie Nose” D’Amico, is a mediator. How about that?!? Diplomacy skills are more valuable than muscle – new roles for new times.

To email me, click Perry S. Itkin.

A Holiday Present For You - If You Can’t Type [Or If You Can]!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420 Conduct of Mediation provides:

(c) Closure. The mediator shall cause the terms of any agreement reached to be memorialized appropriately and discuss with the parties and counsel the process for formalization and implementation of the agreement.

Even though the Committee Notes enlighten us that mediators are “. . . not required to write the agreement themselves”, a mediator may act as a scribe and type the agreement as it is dictated to them by counsel or they will type the terms of the agreement as they develop point by point during the mediation. Can you do two things at the same time, i.e. listen and type [without looking at the keyboard]? Have you attempted this and found Jabberwocky on the screen?

Well, for fun, you might want to print the following paragraph and ask someone to read it out loud to you.

“Aoccdrnig to rscheearch at Cmabrigde Uinervtisy, it deosn't mttaer in waht oredr the ltteers in a wrod are, the olny iprmoatnt tihng is taht the frist and lsat ltteer be at the rghit pclae. The rset can be a toatl mses and you can sitll raed it wouthit a porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe.”

Even though the letters are jumbled in the paragraph, most people have no trouble reading it! Credits to Robert K. Goral for the paragraph.

Now, wasn’t that fun? Okay, how about interesting? Aren’t we just simply amazing?!?

Enjoy the Holidays and your families; stay safe!

To email me, click Perry S. Itkin.

Florida Hurricane Mediation Program Is A Model

As noted in this prior posting, Florida has developed a mediation protocol to address hurricane damage disputes that arise between insureds and their insurance carriers. It works! According to this article in the Insurance Journal, Mississippi’s Insurance Commissioner has unveiled a Hurricane Katrina mediation program patterned after Florida’s program. More details about the program, which is administered by the American Arbitration Association, are reported in this article in The Sun Herald. In addition to mail, telephone or fax registration, Internet registration for this program is expected to be available. How about that!?!

To email me, click Perry S. Itkin.

Court Is Not Always The Best Way – Mediation Is Better!

According to this article from ABC Action News, a Circuit Court Judge said the judicial system is not always the best way to resolve complex disputes and that mediation is the only way to find a middle ground between a university professor and Florida State University in a dispute over the focus of a new chemistry building. What’s this all about?

To email me, click Perry S. Itkin.

What’s Up With Parenting Coordination?

The Florida Chapter of the Association of Family & Conciliation Courts Task Force on Parenting Coordination has issued its final report on the development of parenting coordination legislation. It recommended that the parenting coordination legislation not be submitted for consideration to the Florida Legislature for action during this 2006 session since there still remains vast differences in approaches to the use of parenting coordinators, which differences are not resolvable at this time and that it was highly unlikely that the legislative process would result in a statute that would have wide support among the stakeholders interested in its outcome.

Click here for more information on the Task Force background.

To email me, click Perry S. Itkin.

Mark Your Calendar!

In an earlier post I reported that the Florida Supreme Court ADR Rules and Policy Committee had filed its Petition to amend Florida’s Rules for Certified and Court-Appointed Mediators requesting revisions to the qualifications for mediator certification and other matters. The Petition was filed May 11, 2005. Just yesterday, Oral Argument on the Petition was scheduled for Wednesday, February 8, 2006. All to say, mark your calendars! If you’d like to watch the proceedings on-line, you can do so by clicking here [not before February 8, 2006 – but you knew that, right?!?].

Enjoy the weekend!

To email me, click Perry S. Itkin.

Florida Supreme Court Adopts Amendments to Small Claims Rules Referencing Mediation!

The Florida Supreme Court adopted Amendments to the Florida Small Claims Rules in its opinion SC05-146, released today with an effective date of January 1, 2006.

The Court adopted new Form 7.321, Notice to Appear for Pretrial Conference/Mediation, as proposed by the ADR Rules and Policy Committee, and agreed to by the Small Claims Rules Committee. This Form provides “[t]he case will not be tried at the Pretrial Conference, but may be mediated at that time. Do not bring witnesses. You must appear in person or by attorney. Whoever appears for a party must have full authority to settle for all amounts from zero to the amount of the claim without further consultation. Failure to comply may result in the imposition of sanctions, including costs, attorney fees, entry of judgment, or dismissal.” The Notice to Appear also contains an explanation of mediation and confidentiality of mediation communications.

The Court also adopted Form 7.350, Corporate Authorization To Allow Employee To Represent Corporation At Any Stage Of Lawsuit, and this includes mediation.

To email me, click Perry S. Itkin.

Have You Ever Been Threatened During Mediation?

F. S. 838.021, Corruption by Threat Against Public Servant, makes it a felony to harm or to threaten harm with the intent or purpose to influence a public servant to do, or not do, an act within the discretion of the public servant, or in violation, or performance, of a public duty. While providing mediation services in a court-ordered mediation are you considered to be a “public servant”? Unless you are covered under the specific provisions of F.S. 838.014(6), Definitions, you won’t like the answer provided in F.S. 838.014(6)(c), Definitions.

So, do you think the statute should be changed?

To email me, click Perry S. Itkin.

MEAC Opinions 2005-002 and 2005-003 – Now Online!

MEAC Opinion 2005-002: A position as a judicial assistant does not automatically prohibit you from mediating, but you are still obligated not to mediate a matter that “presents a clear or undisclosed conflict of interest,” Rule 10.340(a). You are required to make this determination on a case by case basis.

MEAC Opinion 2005-003: The Mediator Ethics Advisory Committee lacks the jurisdiction to determine whether a mediation should be treated as a negotiation for purposes of sections 447.605(2) and 286.011(3), Florida Statutes. However, if a mediation falls within the scope of the Mediation and Confidentiality and Privilege Act, then all mediation participants are obligated to adhere to its provisions.

To email me, click Perry S. Itkin.

“I’m A Certified Mediator. Am I Ethically Obligated to Report Another Certified Mediator’s Ethical Violations?”

According to the Mediator Ethics Advisory Committee’s most recently published opinion, the answer is “[t]here is no ethical obligation under the Florida Rules for Certified and Court-Appointed Mediators for a mediator to report allegations of ethical violations by another mediator.” You will want to read MEAC Opinion 2005-004. It also opines that “[i]t is inappropriate for a mediator to represent either one party or both parties in any dissolution proceeding or in any matter arising out of the subject mediation.”

To email me, click Perry S. Itkin.

Cross-cultural Misunderstandings & Negotiation

Carefully preparing for mediation is always important and is especially significant when one or more of the parties is from a culture other than your domestic culture. This article, International Negotiation: How Do I Get Ready?, by Lothar Katz, founder of Leadership Crossroads, will help you prepare for an international negotiation. It’s worthwhile reading!

To email me, click Perry S. Itkin.

“If You Don’t Sign This Post-Nuptial Agreement, I’ll Divorce You!”

Or, to put it another way, “if you really love me, you’ll sign!”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420[b][4] Conduct of Mediation, Adjournment or Termination, provides, in part, that a mediator shall “terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability. . . .”

In Zoldan v. Zohlman, 2005 Fla. App. LEXIS 18798 [Fla. 3rd DCA 2005], the Third District Court of Appeal reversed a final judgment declaring a post-nuptial agreement to be invalid because of undue influence. The court held that “mere affection and attachment or a desire to gratify the wishes of one who is esteemed or trusted may not alone be sufficient to amount to undue influence.”

Although this did not involve a mediation conference, the principle is illustrative of what a mediator should think about when considering termination under the above rule.

To email me, click Perry S. Itkin.

The Valueless Apology!

You may have heard it before – “I’m sorry.” In the context of the facts in In re Debra L. Koven, On Contempt, 2005 Cal. App. LEXIS 1818 [Cal. 2nd App. Dist., Div. 6 2005] the lawyer apologized “for the improper statements in the petitions, [and] expresses deep regret for impugning the [integrity of this] Court, and accepts the embarrassment she has brought upon herself. . . .” This did not prevent her from being held in contempt by the appellate court.

The lawyer’s approach to litigation focused on impugning the integrity of everyone in the legal system, whether judges, justices, attorneys, or expert witnesses, who obstructed the achievement of her goals. I wonder what this lawyer would have to say about mediators!

How did the court determine whether the apology was genuine? Well, you’ll have to read the interesting analysis. All to say, sometimes “I’m sorry” just doesn’t have value.

To email me, click Perry S. Itkin.

P.S. By the way, for most of last week I was presenting my 40 hour Family Mediation Certification Training program and was unable to post to Florida Mediator.

Pre-suit Employment Dispute Resolution Policy Upheld

In Caley v. Gulfstream Aerospace Corp., 2005 U.S. App. LEXIS 23518 (11th Cir. October 31, 2005) an employee’s challenge to the employer’s adoption of a dispute resolution policy [DRP] was dismissed and the dismissal was affirmed on appeal. The plaintiffs’ continued employment after receipt of the policy and accompanying clear notice constituted assent to the DRP’s terms.

The DRP provided an exclusive procedure to resolve covered workplace disputes and when it was implemented it became a condition of continued employment. The DRP established a four-level dispute-resolution process, as follows: Level One: Human Resources Review; Level Two: Management Panel Review; Level Three: Mediation; Level Four: Arbitration. The DRP explained how each level would work and set forth specific discovery rules.

The opinion contains a fairly detailed presentation of the DRP – it’s worth reading! What do you think about this early intervention ADR program?

To email me, click Perry S. Itkin.

Lawyers As Peacemakers

According to this article in the Jacksonville Financial News and Daily Record, the speakers at the Jacksonville Bar Association Judicial/Bar Symposium declared that lawyers have a long way to go before they can be described as peacemakers. Among the interesting concepts mentioned is “the emerging field of lawyer personality”. Any message here for mediators and lawyers?

Speaking of peace, please accept my best wishes to you and your family for a Happy Thanksgiving!

To email me, click Perry S. Itkin.

National Mediation Helpline – Is This A Good Idea?

According to the National Mediation Helpline website, this is a service that will help explain the basic principles of mediation, answer general inquiries relating to mediation and put the inquirer in touch with one of the designated Mediation Providers. The Mediation Provider will then assign a professional and experienced Mediator. A telephone number is offered on the website to encourage callers to speak to an “adviser” who will take some basic information which is forwarded to a Mediation Provider. By the way, the prospective caller is assured of confidentiality during the phone call [I knew you were wondering about that].

So, do you think this is a good idea? Any problems here? Oh, this helpline is in the United Kingdom – not the United States!

To email me, click Perry S. Itkin.

Mediation May Be Taxing!

Well, it’s not exactly what you might be thinking! The Florida Supreme Court, in its opinion In Re: Amendments to Uniform Guidelines for Taxation of Costs, 2005 Fla. LEXIS 2285 [Fla. 2005], has adopted proposed revisions to the guidelines especially since they met the criteria and concerns of the Court’s stated policy of “reducing the impact of costs upon parties, with the ultimate aim of decreasing the overall costliness of litigation.” Under these guidelines, it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken. The revisions are effective January 1, 2006.

Among the litigation expenses that may be taxed are Mediation Fees and Expenses, i.e. the costs and fees of the mediator.

By the way, I was at the Florida Supreme Court ADR Rules and Policy Committee meeting last week which is why no postings were made Wednesday through Friday last week. This is a marvelous committee and I’m honored to be a member!

To email me, click Perry S. Itkin.

“I Didn’t Know What I Was Doing; Don’t Enforce the Agreement!”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420, Conduct of Mediation ; (b) Adjournment or Termination provides, in part, that:

A mediator shall:

(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;

(3) adjourn or terminate the mediation if the mediator believes the case is unsuitable for mediation or any party is unable or unwilling to participate meaningfully in the process;

(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and . . . . [Emphasis added.]

Mediators sure have a lot to think about!

What do you think of these circumstances in light of the above rule? After a full day of mediation, a party who was also an attorney [represented by counsel], reached a settlement agreement which was signed by all parties and their counsel. Immediately following the mediation, the attorney-party drove himself to a hospital where he was admitted and diagnosed with a ruptured cerebral aneurysm, sub-arachnoid hemorrhage, and stroke. He underwent surgery the next day and was placed in the intensive care unit for approximately one month prior to his eventual discharge from the hospital. He claims to have no recollection of the events preceding his hospitalization.

He resisted a motion to enforce the agreement and sought rescission on the ground that he was not mentally competent to enter into a contract at the time the agreement was negotiated and signed. The court in In Re: Raines v. Flinn, 2005 U.S. App. LEXIS 24025 [Cir. 9th 2005] affirmed the order enforcing the agreement. Whaaat?!? Well, you’ll have to read part of the opinion to find out why.

To email me, click Perry S. Itkin.

Adversarial Mindsets Don’t Work Well In Mediation – And Then Some!

Some disputes are not suitable for mediation; likewise, some people are not suitable. Did you ever wonder whether any surveys were conducted which included the adversarial mindset and the consequences on performance in mediation? Okay, just in case you did – wonder no more! According to this article in the Law Gazette, a publication of the United Kingdom’s Law Society, a study conducted by the Centre for Effective Dispute Resolution [CEDR] disclosed that 20% of the lawyers participating in mediation were rated as having performed less than adequately. By the way, this was part of a survey of more than 400 mediators.

What factors do you think led to this outcome? Well, you’ll have to read this interesting piece to learn about the conclusions drawn from the survey.

In addition, here’s the Executive Summary if you’d like more details about the mediator audit. “The audit covered attitudes of civil and commercial mediators to a range of issues concerning their personal background, mediation practice and experience, court-annexed mediation, training standards and professional regulation, and the critical factors in achieving successful mediation.”

To email me, click Perry S. Itkin.

Happy Birthday to a One Year Old!

One year ago today Florida Mediator was launched [that might be blogspeak for born - just guessing]. Happy Birthday! Thanks to everyone for your enthusiastic support and thoughtful compliments. I am deeply grateful.

To email me, click Perry S. Itkin.

A Perfect Example!

Florida Rules of Civil Procedure, Rule 1.730. Completion of Mediation, provides:

(a) No Agreement. If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. [Emphasis added.]

According to this article in the Pine Bluff Commercial, the obstacle to resolution of this dispute over unpaid jail fees involved how the trial judge would define a particular phrase which was central to the disputing parties. The judge’s ruling came after 20 hours of mediation spanning a 2 day period and both sides find it helpful in facilitating the possibility of settlement.

To email me, click Perry S. Itkin.

Judicial Exhortation To Settle – Will It Work?

Along the same lines as seen in today’s post A Perfect Example!, is a federal court judge’s exhortation [and an inclination as to how he might rule on a particular point] to the disputing parties to reach a settlement in this highly publicized environmental conflict reported in this article in the Palm Beach Post followed 2 days later by this article in the South Florida Sun-Sentinel. Facing the parties is a tight timeline and other litigation.

Take a look at these articles and learn how the judge and the parties view the entire matter of settlement. Of interest is how the judge empowers the parties in recognizing their creativity contrasted with the court’s limitations. Any insights for the mediator?

To email me, click Perry S. Itkin.

Senior Judges as Mediators – New Rules!

In its opinion in In Re: Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 2005 Fla. LEXIS 2123 [Fla. 2005], the Florida Supreme Court has approved the majority of the recommendations of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy along with a commendation to the Committee that its work represents a substantial contribution to the improvement of the administration of justice in Florida. The innovative recommendations are designed to avoid the appearance of impropriety and safeguard against potential ethical violations resulting from dual service as a senior judge and a mediator.

The following Florida Rules are amended:

Civil Procedure
Judicial Administration
Juvenile Procedure
Certified and Court-Appointed Mediators
Family Law Rules of Procedure
Code of Judicial Conduct

Except for Judicial Administration, the effective date of the amendments is January 1, 2006.

To email me, click Perry S. Itkin.

Mediator Ethics Advisory Committee Opinion 2005-001 - Now Online

The Mediator Ethics Advisory Committee Opinion 2005-001 is available online. Here’s the summary:

The Homeowners’ Association [HOA] Program billing procedures do not present any per se ethical concerns related to fees, expenses, or impartiality for a Florida Supreme Court certified mediator who participates in this program so long as the fees and their allocation between the parties are disclosed in advance of the mediation to the parties or their counsel, and the parties are given the option of agreeing to that arrangement or negotiating a different one.

Remember, a mediator is required to give parties or their counsel a written explanation of fees and costs prior to mediation. Florida Rules for Certified and Court-Appointed Mediators, Rule 10.380(c) Fees and Expenses; Written Explanation.

Remember, too, that as with any other ethical matter, a mediator should decline to mediate if the mediator believes the facts and circumstances might impair the mediator’s ability to follow the ethical rules.

To email me, click Perry S. Itkin.

The Resolution Report - October, 2005 Issue - Now Online

The October, 2005 issue of the Dispute Resolution Center’s quarterly publication, The Resolution Report, is now online. Be sure to read my Case and Comment article for some thought provoking appellate opinions!

To email me, click Perry S. Itkin.

“Yes You Did! No I Didn’t!”

Frequently parties want a confidentiality agreement as part of their settlement. Here’s an example of why it is necessary to be detailed in drafting what precisely constitutes a violation of the confidentiality agreement. University of Alabama football coach Mike Price and Time, Inc.’s Sports Illustrated had been engaged in a two-year defamation litigation resulting in a settlement which contained a confidentiality provision. Price declared a “great victory”and Time, Inc. said this, among other things, constituted a violation of the confidentiality agreement and wants the agreement thrown out according to this article in the Fulton County Daily Report and this article from NBC13.com.

To email me, click Perry S. Itkin.

Hurricane Wilma Knockout!

I have not been able to post since last Friday due to Hurricane Wilma’s power knockout – no electricity equals no blogging, among other things! As of today I still have no electricity. Today’s post is battery operated with a lot of luck. I won’t be posting for the rest of this week since (a) we have no power and (b) I have a 40-hour Circuit Civil Mediation Certification training this week which ends on Sunday [the Broward County Bar Association is fully operational, fortunately]. All to say, I’ll resume regular posting next Monday – if Florida Power and Light restores service by then! If not, I’ll figure something out!

U.S. Supreme Court Nominee Harriet Miers – A Mediator!

According to this editorial in The Herald Bulletin by the Chairman of Indiana’s Republican Party, U.S. Supreme Court nominee Harriet Miers was a tough, fair mediator. This article in Legal Times reports that for nearly 30 years she was a mediator of mundane business battles. See even mediating mundane cases can be tough – or something like that.

The “supreme” irony [pun intended] is that Ms. Miers was nominated to replace retiring Justice Sandra Day O’Connor who has been viewed as the U.S. Supreme Court’s mediator as reported here in this earlier post.

Hurricane Wilma is headed this way – who knows where we will be on Monday. Be prepared and stay safe!

To email me, click Perry S. Itkin.

It Was Only a Matter of Time – A Reality Show Involving Mediation!

Really? Yes, according to this article in The Daily Record. O.K., it’s in the U.K. not the U.S. - will we be far behind? The show, advertised on BeOnScreen offers cash to families willing to have the realities of their separation, mediation and divorce televised. While mediators are already stars, is this a good way for you to shine? Is this an intelligent format within which to educate the public about mediation [and, yes, there’s still a lot of educating to be done]? What do you think?

Florida’s Mediator Ethics Advisory Committee [formerly known as the Mediator Qualifications Advisory Panel] was prescient on this issue when it promulgated Opinion 97-008, which in summary states “[p]roducing a TV show with real parties in a live mediation is not a violation so long as the parties are informed of their right to confidentiality and waive it.” [Unfortunately, the link to the opinion does not work; if you’d like a copy of the opinion, please email your request to me and I’ll email the opinion to you.]

To email me, click Perry S. Itkin.

Whaaat?!? – A Free Lunch?!?

There really is such a thing as a free lunch! Well, sort of. In the case of Morgan v. Steiner, 2005 N.C. App. LEXIS 2105 [N.C. App. 2005], the parties participated in a mediation conference and did not reach a settlement. Steiner made an offer of judgment which Morgan rejected. The jury returned a verdict for Steiner. Under North Carolina’s rules of civil procedure, plaintiff must pay defendant’s costs if plaintiff rejects a settlement offer more than ten days before trial and the final judgment is less favorable than the offer. [This is like Florida’s offer of judgment – but, you knew that!] The trial judge awarded Steiner costs, including the costs of mediation. Morgan appealed. The North Carolina Court of Appeals upheld the award of mediation costs, but found that the trial court had erred in including the cost of lunch provided by Steiner at the mediation settlement conference because state statute did not specifically authorize an award for that cost.

And you thought I was kidding!

To email me, click Perry S. Itkin.

Sometimes Gift Giving Is Not a Good Idea!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.330(c), Gifts and Solicitation, provides, in part, that

A mediator shall neither give nor accept a gift, favor, loan, or other item of value in any mediation process.

What are the consequences of a mediator giving gifts of lunches, gift baskets and cash? [That’s right – cash. I know, you’re wondering what mediator in their right mind would give cash!] According to this article from Newsday, the chief of the New Jersey state panel that hears labor disputes has been demoted, following an ethics probe that found his employees accepted gifts and cash from individuals and law firms seeking work as mediators.

By the way, there are two Mediator Ethics Advisory Committee opinions on the topic of mediator gift giving, 2001-006 and 99-005. They are worth reading!

To email me, click Perry S. Itkin.

Reprehensible Negotiation Tactics Just Don’t Cut It!

Although this Third District Court of Appeal case is not a mediation case specifically, it does provide some insight as to how a court evaluates reprehensible negotiation tactics - alternatively characterized as bad faith [arbitrary negotiation] in this corporate statutory structure or negotiation by extortion, generally. Neither was helpful to the appellant in Morales v. Rosenberg, 2005 Fla. App. LEXIS 16284 [Fla. 3rd DCA 2005]. As mediators, don’t you think we should be alert to these tactics and their consequences?

To email me, click Perry S. Itkin.

Referral to Mediation Forestalls Claim for F.S. 57.105 Attorneys’ Fees

The Second District Court of Appeal in Connelly v. Old Bridge Village Co-op, Inc., et al., 2005 Fla. App. LEXIS 16307 [Fla. 2nd DCA 2005] reversed an order awarding attorney’s fees and costs under section 57.105(1), Florida Statutes. In this unique case, a motion to dismiss was filed and instead of ruling on it the court ordered the parties to mediation which resulted in an impasse. Part of the rationale for the appellate court’s reversal of the award was that “the referral to mediation suggested that the declaratory judgment action had some validity or at least was not so devoid of merit as to be obviously and apparently unsupported by the material facts necessary to establish the claim.”

How about that? Isn’t the aura of mediation something?!?

To email me, click Perry S. Itkin.

Breach of Confidentiality – Is There Liability for The Mediator or Mediation Participant?

Suppose, just suppose, the mediator makes a wrongful disclosure of confidential information. Okay, you don’t want to suppose that – then suppose, just suppose, a mediation participant makes the same wrongful disclosure. Still not pleasant, I realize. Yes, mediators have two types of statutory immunity from liability – “absolute” and qualified – F.S. 44.107. That does not necessarily prevent someone from filing a lawsuit. I know, this is not getting better. We now have a Mediation Confidentiality and Privilege Act which provides a civil remedy for its violation in F.S. 44.406. Where is all this going you wonder?

In Woodward v. Jupiter Christian School, Inc., 4D04-3531 [Fla. 4th DCA 2005] decided today, the issue was whether Florida’s “impact rule” applies to a claim for negligent infliction of emotional distress arising out of a breach of a fiduciary duty of confidentiality. Both the majority opinion and the dissenting opinion contain thorough, cogent analyses of the issue. The opinion is well worth reading and to think about whether there is liability for the mediator or mediation participant in the event of a breach of confidentiality. Really, please think critically about the potential here.

To email me, click Perry S. Itkin.

“I’m Divorced; I’m Divorced; I’m Divorced!”

Not me personally! According to this article in the Khaleej Times, a husband saying Talaq three times, even in the presence of the wife, is not sufficient ground for divorce. The High Court in Kerala has said that under Muslim law, mediation should be undertaken before using the Talaq option in divorce. In that case, the husband argued there was a valid ground for divorce and he was not obligated to pay maintenance. The court didn’t accept his argument. Do you see any similarity to some [okay, more than some] Florida trial judges requiring mediation prior to Final Hearing in a dissolution of marriage case? Of course you do!

To email me, click Perry S. Itkin.

Florida Is Not Alone!

The Gulf Coast has been ravaged by Hurricanes Katrina and Rita. Florida was fortunate this time. However, the damage to Florida wrought by last year’s hurricanes and the difficulties experienced by homeowners with their insurance companies has been addressed through mediation as previously mentioned in Florida Mediator first in this post and in a follow up post. In response to the Gulf Coast Tragedy, the American Arbitration Association has established a new Disaster Recovery Claims Resolution Services program to use mediation to resolve insurance claim disputes between homeowners and businesses and their insurance carriers.

To email me, click Perry S. Itkin.

Is The Mediation Process Abused?

On occasion, parties and counsel abuse the process of mediation. Remember, not all cases, not all parties and not all counsel are suitable for mediation. Having said that, according to this article from Oregon Public Broadcasting, one side in this case involving alleged molestation by priests in the Portland Archdiocese claims the other side is using mediation as a delaying tactic. What do you think?

To email me, click Perry S. Itkin.

“We Must Talk” - Pre-mediation Settlement Discussions Required in Certain Mobile Home Disputes

F.S. 723.037 of Florida’s Mobile Home Park Lot Tenancies statute [Chapter 723, Florida Statutes] requires mobile home park owners and a committee of mobile home owners [or the mobile homeowners’ association board of directors’ designees] to meet within 30 days after receipt by the homeowners of a notice of change in lot rental amounts, reductions in services or utilities or changes in rules or regulations. Ground rules are set forth in the statute. This is a pre-requisite to the parties proceeding to mediation. Is this a good idea?

By the way, as you may have suspected, pre-suit mediation is required before litigation.

To email me, click Perry S. Itkin.

“Respectfully, you can’t do that in a family case either, Judge.”

In Burkley v. Burkley, 2005 Fla. App. LEXIS 15479 [Fla. 5th DCA 2005], the former wife filed a supplemental petition for modification of child support and for breach of contract. The claim for breach of contract was based on a mediation agreement which was previously approved by the trial court: “This [Mediation Agreement] shall not be merged with or into the [Stipulated Order], but shall survive as a separate, enforceable contract on its own and shall be enforceable by either party as such.” The trial judge imputed income to the father, established a child support arrearage, and modified child support based on breach of contract. The Fifth District Court of Appeal reversed because virtually all of the ruling and judgment relied on the trial court’s interpretation of Chapter 61, Florida Statutes which the trial judge ignored and applied erroneously.

So, even though there is a mediation agreement pertaining to child support which did not offer support beyond that provided for in the statute, the court must regard the mediation agreement in the context of the statute’s explicit limitations on modifying support, imputing income, or awarding retroactive support. Do you think this may impact how mediation agreements are drafted as they pertain to child support?

To email me, click Perry S. Itkin.

To Avoid the Death Penalty All You Have To Do Is Ask!

Ok, not exactly! Dismissal with prejudice in a civil case is sort of tantamount to the “death penalty”. In Office Environments, Inc. v. Lake States Insurance Co., 833 N.E.2d 489 [Ind. Ct. App. 2005] the Indiana Court of Appeals upheld a dismissal with prejudice when a party refused to comply with a mediation order to mediate. The Court of Appeals found that Appellant delayed mediation for an unreasonable period of time and did not use the proper channels in refusing to pay for mediation. It really shouldn’t take 3 years to schedule mediation, should it? Pretty good work by the mediator here in attempting to schedule this mediation! Take a look.

To email me, click Perry S. Itkin.

“Respectfully, you can’t do that, Judge.”

In Johnson v. Bezner, 2005 Fla. App. LEXIS 14746 [Fla. 4th DCA 2005] the Fourth District Court of Appeal reversed the trial judge, not because the judge enforced the mediated settlement agreement and not because the trial judge found that appellants had breached the agreement, but because the trial judge fashioned a remedy for the breach and imposed terms that were not included in the agreement. No wiggle room in this circuit civil case!

To email me, click Perry S. Itkin.

Upcoming ABA ADR Program

On October 21, 2005 at the Venetian Resort Hotel Casino in Las Vegas, Nevada, the ABA Section of Intellectual Property and The Forum on Entertainment and Sports Industries are co-sponsoring an ADR program Hot Topics in Entertainment and Intellectual Property Law for the Lawyer and the ADR Neutral. You can obtain more details here.

To email me, click Perry S. Itkin.

FEMA to Hire Mediators for Temporary Disaster Deployment

FEMA (the Federal Emergency Management Agency) has posted announcements for highly qualified “Conflict Resolution Specialists” and “Alternative Dispute Resolution Attorneys” to join a special ADR team to assist in disaster response and recovery. A total of 25 positions will be filled. This has been put on the fast track. Closing date for these positions is Monday, October 10th, 2005. Training will take place in late October or November. Deployment of some team members will take place soon thereafter. Compensation, travel and per diem are included for all training and deployment assignments.

Questions and resumes should be submitted ONLY to the email in the job opportunity announcements. If you are very experienced and qualified in mediation and conflict resolution, please submit your resume as soon as possible.

For Conflict Resolution Specialists (non-attorneys) click here.

For ADR Attorneys click here.

To email me, click Perry S. Itkin.

Mediators as “Change Agents”

Faced with the need to change their perception of their conflict [and only if they want to], disputing parties look to the mediator as their “Change Agent”. Mediation has as its focus a future orientation [but you knew that!]. So among our challenges is to assist the parties in focusing on the problem and then move forward. Here’s an interesting article from the September, 2005 issue of Link and Learn about how anesthesiologists looked at themselves and altered the course of their profession – by defining the change. Do you see any parallels to mediation skills and techniques?

To email me, click Perry S. Itkin.

“I’m Certified; Now What?!?”

You’ve completed the certification training program [good!]; you’ve completed the mentorship requirements [better!]; you’ve submitted your application for certification, it was approved and you’ve become a Florida Supreme Court Certified [county/circuit civil/family/dependency – take your pick] mediator [best? – well, not just yet!]. You have new business cards and letterhead stationery [maybe even a website] – that’s nice. How do you ‘break into the field’ [that would be the best, right?!?] when there are already experienced mediators out there? You are not alone according to this article in London’s Legal Week.

To email me, click Perry S. Itkin.

Behind Closed Doors

Here’s an article from the Orlando Sentinel which contains interesting information into a party’s perception of the mediation conference and a collaborative outcome in a sad case involving the death of two sisters walking across the street killed by a driver who ran a red light. A criminal case arising out of the same facts is still pending. What impact, if any, do you think the mediated civil settlement will have on the criminal matter?

To email me, click Perry S. Itkin.

Happy Anniversary!

Well, not to an individual but rather to the NASD which is celebrating the 10th Anniversary of its Mediation Program according to this press release. In the past 10 years, NASD has processed over 12,500 cases covering a wide variety of securities disputes. Keep up the good work!

To email me, click Perry S. Itkin.

Surprise!

As you know there are different styles of mediating, i.e. facilitative, evaluative, transformative, etc. Have you heard about “Surprise Mediation”? Ok, it’s not exactly a mediation style. According to this article in The Arizona Republic – ‘Surprise offers mediation as an alternative to court’. The city of Surprise, Arizona has a community mediation program which offers free mediation services to city residents and local businesses – hence, “Surprise Mediation” [you figured that out by now, right?].

I start a 40 hour Family Mediation Certification Training program tomorrow and will post again next week. Please have a safe and enjoyable weekend.

To email me, click Perry S. Itkin.

Sponsor of Mediation Confidentiality and Privilege Act Runs for Florida Attorney General

Florida State Senator Walter “Skip” Campbell has announced his campaign for Attorney General according to this article in the South Florida Sun-Sentinel. Senator Campbell was the sponsor of the 2004 Senate Bill 1970 which, among other mediation items, included the groundbreaking Mediation Confidentiality and Privilege Act, F.S. 44.401-44.406. Good luck, Senator Campbell!

To email me, click Perry S. Itkin.

It’s Perfectly Clear!

In Developers of Northlake, Inc., and Twin Cities Investors, Inc. v. Northlake Equities, Inc., 2005 Fla. App. LEXIS 14105 [Fla. 4th DCA 2005] the Fourth District Court of Appeal decided that what the parties argued was unambiguous [citing, of course, their opposite views of the world] was indeed unambiguous and that the trial judge’s order enforcing a mediation agreement was in error even though one articulated position lead to an absurd result; that’s what the arbitrator ordered [yes, arbitrator] and that the parties agreed to be bound by the arbitrator’s decision. What’s unfortunate here is an apparent lost opportunity in mediation to explore the parties’ divergent views of the meaning of the arbitrator’s words in his award.

To email me, click Perry S. Itkin.

Excellent Florida ADR Reference Materials On-line!

Really – it’s true! The Florida Dispute Resolution Center has put its 2005 ADR Resource Handbook online as well as its 2005 Compendium. The ADR Resource Handbook contains FL ADR Statutes, FL Procedural Rules: Mediation & Arbitration, FL Rules for Certified & Court Appointed Mediators, FL Rules for Court Appointed Arbitrators, Mediation Training Programs Standards & Procedures, and the current Mediator Certification Administrative Order. The 2005 Compendium contains statistics and descriptions of court-connected ADR programs, contact information for court ADR programs, and Supreme Court ADR committees and boards.

An order form to purchase hard copies of these volumes can be found here.

To email me, click Perry S. Itkin.

Mediating with the Police

Here are two articles which provide interesting applications for mediation in the law enforcement venue. One program involves mediating citizen complaints against police officers as reported in this article in The Seattle Post-Intelligencer Reporter. Another use of mediation is in disciplinary matters involving police officers as reported in this article in The Daytona Beach News-Journal: East Volusia. Good ideas, don’t you think?!?

Speaking of law enforcement, please enjoy a safe, peaceful Labor Day Weekend!

To email me, click Perry S. Itkin.

Sue the Mediator – Face Immunity!

Although you don’t hear much about mediators as defendants in litigation [thankfully], it does happen from time to time as was the situation in Secress v. Ullman, 2005 U.S. App. LEXIS 16490 [9th Cir. 2005]. Even though this was a California case, it’s certainly a “heads up” for mediators everywhere. The Court relied on quasi-judicial immunity as part of the basis for dismissing the case against the mediator, who, by the way, was not the only defendant.

Florida has a statute providing for immunity for mediators serving both in court ordered and noncourt-ordered mediations, F.S. 44.107. This provides a statutory defense – it doesn’t prevent a lawsuit from being filed. Be careful out there!

To email me, click Perry S. Itkin.

Help Victims of Hurricane Katrina

The Network for Good has a useful listing of organizations and a brief description of the relief efforts they provide in helping the victims of Hurricane Katrina. Please visit the website.

To email me, click Perry S. Itkin.

“But I Thought . . . .”

This article from the Harvard Business School’s Working Knowledge newsletter is an excellent presentation on comparing critical [translated means logical] thinking with emotional thinking. Although written in a business management context, the decision-making concepts are equally applicable in mediation. So, are you a critical thinker, an emotional thinker, or [in the spirit of mediation] both?

To email me, click Perry S. Itkin.

The Tragedy of Katrina

Only prayers today – for the victims of Hurricane Katrina and for the rescue and response workers as they maneuver through the destruction. Frankly, I’m without words – the devastation is overwhelming and unfathomable. The Red Cross and The Salvation Army are just two of the aid organizations you might think about if you want to help.

To email me, click Perry S. Itkin.

Mediating an Embezzlement!

Well, not exactly. To put the title of this post in another way, it could read “How ‘I have a great case’ became so complicated that the solution lies in mediation” [except that’s too long for a title]. Here’s a very interesting article in the Skagit Valley Herald [State of Washington] in which the prosecutor and defense counsel in a criminal proceeding have turned to mediation in an effort to resolve the issues because of the twists and turns the case has taken in court.

To email me, click Perry S. Itkin.

“Say What?”

As mediators we know how important listening is as an essential skill and, yes, you’ve heard this a thousand times [me too]. It’s too important to forget, must be done without distraction to be significant and is critical for relating to people exceedingly well [we want that, right?!? Say yes!]. Here’s an interesting article which appeared in Fast Company magazine with a good exercise to help us remember to communicate with caring, empathy and respect. After all, that’s a big part of what we do!

I’ll be attending Florida’s annual Dispute Resolution Center conference in Orlando and won’t be posting again until Monday. Oh, by the way, we’re supposed to have Hurricane Katrina in a day or so in Fort Lauderdale [please don’t let that happen] which is why I won’t be blogging also.

To email me anyway, click Perry S. Itkin.

We Do Make A Difference!

Here’s a nice story from the Palatka Daily News about the volunteer mediation program in Putnam County, Florida where, by the way, they have a need for County Court Mediators – if you’re not mediating as much as you would like to and you’d like to keep your skills sharp, why not give them a call?!? Judy Carroll is the director of the mediation program in Putnam, St. Johns, Flagler and Volusia Counties – telephone 386.239.6504.

To email me, click Perry S. Itkin.

The August, 2005 “Resolution Report” Is Now Available

The Dispute Resolution Center’s August, 2005 issue of The Resolution Report is now available. It contains an update of the activities of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy [a hardworking group of dedicated and talented individuals], current Mediator Ethics Advisory Committee Opinions [a must read section], an update from the Mediator Qualifications Board [we can learn from the grievance case summary], the latest Message from the Director [Sharon Press - but you knew that] and, of course, my Case and Comment article starting on page 16 [I hope you like it and find it informative].

Please don’t forget to attend the annual DRC Conference August 25 – 27, 2005 [that’s next week], Great Expectations, in Orlando. Here’s the conference brochure and a registration form. If you attend, please find me to say hello at my Friday workshop [A5], 10:30am to noon or at the Mediation Training Center table!

I begin my latest 40 hour Circuit Civil Mediation Certification Training Program tomorrow which ends on Sunday. So, no blogging during the next 5 days and I’ll be back on Monday.

Have a good rest of the week, an enjoyable weekend, and “see you” Monday!

To email me, click Perry S. Itkin.

What’s Wrong With This Picture?

Okay, it’s not exactly a picture but there is something wrong. According to this article in Jacksonville’s Daily News and Financial Record, it’s a good idea [and I agree] to read court orders referring parties to mediation and it references segments of the court order in that judicial circuit. So, what’s wrong here? Hint: F.S. 44.302 referenced in the court order no longer exists! It has been replaced by F.S. 44.102. All to say, if you do read the Mediation Orders you receive from the court you might want to check the rule and statutory references to see if they are the current ones. Actually, there’s another reason to check those references and that is to keep up to date since, as you know, mediators have an ethical obligation to do so under Florida’s Rules for Certified and Court-Appointed Mediators:

Rule 10.520. Compliance with Authority.

A mediator shall comply with all statutes, court rules, local court rules, and administrative orders relevant to the practice of mediation.

To email me, click Perry S. Itkin.

Should Oscar the Grouch Mediate This One?

Maybe he has subject matter expertise! According to this article in the Navhind Times, the absentee mediator in this dispute is “the government” – specifically, where should the capital city garbage be dumped [i.e., where should the landfill be located] – not surprisingly the attitude is, you know, not in my backyard. So, how about mediation? In Florida we actually have a statute which is designed to resolve intergovernmental disputes, Chapter 164, Florida Statutes. The process is interesting. Take a look at the prerequisites for the mediation conference and also the duty to negotiate and the obligation to participate in the process in “good faith” [How, and by whom, is that measured?] as well as the consequences for not doing so [F.S. 164.1055 and F.S. 164.1058, for example].

I know, it’s a lot to read but the statute adds twists [some good and some, well, not so good] to the process!

Have a nice weekend!

To mail me, click Perry S. Itkin.

Reservation of Jurisdiction to Award Attorneys Fees – Ooops!

In May v. May, 2005 Fla. App. LEXIS 12430 [Fla. 2nd DCA 2005] the Former Wife prevailed on her Motion to Enforce Mediation Agreement in which she requested an award of attorney’s fees. The court, at the request of counsel for both parties, agreed to determine the issue of attorney's fees at a post-hearing time – however, the court inadvertently did not do so in its order. The Second District Court of Appeal reversed and remanded for the court to enter a corrected order reserving jurisdiction to consider the Former Wife’s request for attorney's fees.

To email me, click Perry S. Itkin.

Mediating With Mother Nature

Well, not exactly. How about mediating the tsunami? Ok, ok – how about training to mediate tsunami related disputes. According to this article in the Daily News [not the one from New York], the Legal Aid Commission of Sri Lanka in collaboration with the Alternative Disputes Resolution Institute commenced a Mediator Trainer Training Program. The model is based on Christopher Moore’s model. Moore wrote The Mediation Process: Practical Strategies for Resolving Conflict.

The article is interesting not only from the practical perspective but also as a look into how another country views mediation. By the way, did you know that Sri Lanka is the second most litigious society in the world?

To email me, click Perry S. Itkin.

Success In Mediation Is Not Just About Settlement!

This is not heresy. It’s actually enlightened thinking by an appellate court in England according to this article in The Lawyer. Take a look – it’s interesting! Are judges here on par with this line of thought?

There’s another aspect to this also as set forth in Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.200, Scope and Purpose which states in part:

Whether the parties involved in a mediation choose to resolve their dispute is secondary in importance to whether the mediator conducts the mediation in accordance with these ethical standards.

See, we’re not alone in our thinking – the English court takes another step forward!

To email me, click Perry S. Itkin.

When Is An Agreement Not An Agreement?

In Dorsett v. Dorsett, 902 So. 2d 947 [Fla. 4th DCA 2005] the parties attended court-ordered mediation. The Mediation Conference Report stated that the parties were still negotiating and may return to mediation [they didn’t]. Months later the former husband filed a Motion to Enforce Settlement Agreement, claiming that at the office of the Wife's attorney, the parties and their attorneys settled, resolved and agreed upon all issues in the case and the former Wife won’t abide by it. The former Husband admitted there was no signed agreement and claimed there was an oral agreement which the trial judge adopted. Some of the terms of this adopted oral “agreement” related to the parties’ minor child. The Fourth District Court of Appeal held that “a trial court’s responsibility to the child cannot be abdicated to any parent, any expert” and that “a court is not bound by any agreement between the parents”.

So, although the parties may create a mediation agreement on some or all parenting issues, the court must still approve it – the parties should be aware of this, don’t you think?

To email me, click Perry S. Itkin.

“What’s the Meaning of . . . ?”

One of principles in the communication module of mediation training is learning to avoid jargon. That’s also a good idea in practice. This article in the New York Law Journal is an excellent example why. A trial judge in New York threw out [how’s that for “jargon-less” writing] a jury verdict after it was disclosed that the jury consulted a dictionary to determine the meaning of “preponderance”. Imagine that!

To email me, click Perry S. Itkin.

Hillary Clinton – Mediator!

According to this editorial in Newsday, Hillary Clinton is characterized as a mediator between the Democratic Party’s “left” and the Democratic Leadership Council. Hmm!! As mediators, we’re trained to probe for, uncover and discuss a party’s hidden agenda. How about some mediator introspection, though? Does a mediator have a hidden agenda? How about Hillary [maybe it’s not so hidden]?!? Good luck, Senator Clinton!

To email me, click Perry S. Itkin.

A Postscript to Yesterday’s Post

By the way, Florida’s Rules of Civil Procedure, Rule 1.730(b) [Completion of Mediation; Agreement] and Florida’s Family Law Rules of Procedure, Rule 12.740(f)(1) [Family Mediation; Report on Agreement] provide that the agreement reached in mediation is required to be signed by the parties and their counsel, if any.

The Rules of Civil Procedure identify 3 ways to memorialize an agreement:

• Reduce it to writing
• Electronically recorded [transcript filed with the court]
• Stenographically recorded [transcript filed with the court]

The Florida Family Law Rules of Procedure likewise identify 3 ways to memorialize an agreement:

• Reduce it to writing
• Electronically recorded [made under oath or affirmed; transcript filed with the court]
• Stenographically recorded [made under oath or affirmed; transcript filed with the court]

So, how is it possible that mediation notes, even coupled with testimony, could conceivably rise to the level of an enforceable mediation agreement? Do the Rules mean what they say – or not? Maybe my mantra, Nothing is as it seems nor is it otherwise, actually is a truism. The requirements of the Rules were not mentioned in the opinion. Hmmm!!

What do you think?

To email me, click Perry S. Itkin.

Warning: Mediation Notes Alone Do Not Constitute An Agreement, But . . . !

In Borck v. Borck, 2005 Fla. App. LEXIS 11049 [Fla. 4th DCA 2005] involving competing petitions for the appointment of a guardian, the trial court ordered the intended ward’s family members and other entities to produce financial information and tax returns. The order was based solely on handwritten mediation notes [it’s not clear from the opinion whose notes they were]. The order was entered without an evidentiary hearing as to the scope of the “agreement” and was based on the notes and one attorney’s representation of the “agreement”. The Fourth District Court of Appeal quashed the trial judge’s order without prejudice to the court holding an evidentiary hearing.

The subtle [well, maybe not so subtle] implication here, however, is that mediation notes coupled with appropriate testimony may rise to the level of an enforceable agreement. Any thoughts on how this might affect your note-taking?

So, what do you do with your mediator notes? Okay, what do you do with, or say about, the notes of the mediation participants, if anything? Good luck, by the way, in trying to collect the notes of the mediation participants! I am not, repeat not, suggesting you place yourself in harm’s way. By the way, there is no mention in the opinion about confidentiality [this is a hint].

To email me, click Perry S. Itkin.

Enforcing Settlement Agreement v. Attorney-Client Privilege

According to this article in the New York Law Journal, a Federal Court judge in the Southern District of New York has ruled in G-I Holdings, Inc. v. Baron & Budd, et al., 2005 U.S. Dist. LEXIS 14128 [S.D.N.Y. July 13, 2005] that a party may not pierce the attorney-client privilege to discover what advice the attorneys gave to the clients about complying with a settlement agreement which provided, “Plaintiff’s Counsel . . . agrees, unless in the exercise of its independent professional judgment it determines otherwise, to recommend that its clients seriously consider [the] alternative dispute resolution procedure [described in paragraph 7. . .]”. Is this enforceable? How?

The judge ruled that “The problem of how to enforce [the above paragraph] was foreseeable, and [the] failure to insist on contractual terms that specified an enforcement mechanism does not justify the invasion into the privilege that [the party] now seeks.”

What would you do to stimulate the parties’ thinking during mediation as to how a breach of such a provision could be managed?

Have a pleasant weekend!

To email me, click Perry S. Itkin.

“This Is An Easy Case For You To Mediate!”

I don’t know what you think when one of the parties or attorneys makes on opening comment like that. To me, it’s like the “kiss of death” – easy is in the eye of the beholder, so to speak. Anyway, when, after much laboring, the parties reach an agreement verbally, more real mediating lies ahead – preparing the written agreement. As an aside, don’t let one of the parties lull you into a false sense of security by asking, before the agreement is written, “How much do we owe you?”. The sagacious answer is, “I’ll tell you after the agreement is prepared and signed.” But, you already knew that, right?!?

Take a look at this article in the Corvallis Gazette-Times which illustrates the point. There, one side presented a short form template agreement and the other side presented a seven page settlement document. Hmmmm!!!!!
How close do you think they are?

To email me, click Perry S. Itkin.

Divorce Mediator Indicted!

I bet that got your attention! Theft + fraud + unauthorized practice of law + using mediation service to pick up dates = indictment. Wait, wait, wait, calm your curiosity down – it was not a Florida mediator! According to this article in Phoenix New Times, a disbarred Vermont attorney opened a mediation business in Arizona, titled “Divorce With Dignity” or “Divorce Associates”. His ads said he would “settle all issues – no trial – no court appearance – be divorced in 90 days – low cost – low stress – judge approved – focus on best interests of children – attorney supervised.” See any problems here? Really, the article is worth reading, as is this one for more information. This gives criminal mediation new meaning.

To email me, click Perry S. Itkin.

Pick Up the Phone!

Florida Rules of Civil Procedure, Rule 1.720(b) provides for sanctions for failure to appear at a duly noticed mediation conference.

(b) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys' fees and other costs, against the party failing to appear. [Emphasis added.]

Has this ever happened to you? One side shows up at mediation and the other doesn’t – no prior warning. Lots of folks are not happy, to say the least. However, before the appearing party rushes to file sanctions, it’s at least worth making a phone call to the non-appearing attorney as was suggested by the Fourth District Court of Appeal in Giron v. Fairways of Sunrise Homeowners’ Association, Inc., 30 Fla. L. Weekly D 1426 [Fla. 4th DCA 2005]. Although it’s not a case involving mediation, the principle of professionalism is always applicable.

A good practice for the mediator would be to call the parties a day or more prior to the scheduled mediation to confirm everyone’s attendance [and, of course, to remind the parties to bring a check] – but, you knew that!! Right?!?

To email me, click Perry S. Itkin.