Monday, January 31, 2005

“You are Obnoxious” – No Defense to Motion for Sanctions!

In Harrelson v. Hensley, 2005 Fla. App. LEXIS 634 [Fla. 5th DCA 2005], the parties were ordered to attend appellate mediation with the potential for sanctions for failure to appear without good cause. Appellee and counsel and Appellant’s counsel appeared. Appellant failed to appear. No motion to be excused from mediation was filed. Mediation proceeded. In response to Appellee’s Motion for Sanctions, Appellant contended that the “obnoxious” conduct of opposing counsel was the reason for not attending mediation. Not good enough and not “good cause” to avoid sanctions in the Fifth District Court of Appeal’s unanimous opinion.

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Friday, January 28, 2005

Mediating a Bit of History - Family Mediation with a Twist!

The Richard Nixon Library & Birthplace is about to house Richard Nixon’s presidential papers. Litigation arose between his daughters over a library bequest with Tricia Nixon Cox insisting on family control and Julie Nixon Eisenhower insisting on a professional staff led by President Nixon’s hand-picked executive director. The judge ordered _______ [fill in the blank] and the dispute was resolved according to this Associated Press article in SFGate.

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Thursday, January 27, 2005

“Nothing Is As It Seems, Nor Is It Otherwise!” – My Mantra Exemplified

If she got remarried, he doesn’t have to pay further alimony; if she did not get remarried, he does. You understand what that means, right? What defines “marriage”? There were wedding T-shirts, a wedding video, exchanges of rings and vows, etc., etc., etc. What was missing? One of the tenets for mediators is to always check for shared meanings and understanding when what are otherwise thought to be generally understood terms are used in an agreement – this would have been helpful here as you will see in this article from the St. Petersburg Times – Tampa Bay.

Watch for the appeal!

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Wednesday, January 26, 2005

Communication Techniques 102 – A Sticky Proposition!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.220 Mediator’s Role provides “The role of the mediator is to reduce obstacles to communication. . . .” and Rule 10.410 Balanced Process provides:

“. . . . A mediator shall promote mutual respect among the mediation participants throughout the mediation process and encourage the participants to conduct themselves in a collaborative, non-coercive, and non-adversarial manner.”

If the technique employed by the trial judge as described in this article in the St. Petersburg Times – South Pinellas was used by a mediator, would you see any problems here?

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Tuesday, January 25, 2005

“How Much Do I Get?” – Settlements, Contingency Fees, & Taxes

The client often asks, “How much do I get?” The lawyer calculates fees and costs and outstanding liens and answers the question. Since “the bottom line” is important, who pays taxes on contingency fees? In this article from the Legal Times, two U.S. Supreme Court cases decided yesterday are discussed as is Federal legislation which provides answers to this taxing question. What are the implications for mediation?

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Monday, January 24, 2005

Be A Good Sport – Mediate!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.320 Nonparticipating Persons, provides:

A mediator shall promote awareness by the parties of the interests of persons affected by actual or potential agreements who are not represented at mediation.
Sometimes those interests are the ones that become the catalyst for settlement as this article in the Sun-Sentinel demonstrates – nonparticipating sports fans provide the solution!

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Friday, January 21, 2005

“It Is What It Is!”

According to this case from the Third District Court of Appeal, the prevailing party attorney’s fees clause in the mediation agreement that specified: “If either party breaches this Agreement or files a modification petition, the prevailing party shall receive his or her attorney fees” means just that. No requirement that the breach be “willful” can be interpreted from this language as was done by the trial court judge. Contractual provisions are strictly construed and the former Wife, as the prevailing party on a significant issue, was entitled to her attorneys fees.

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Thursday, January 20, 2005

“The Devil is in the Details” Hokey Pokey!

In an earlier post on November 17, 2004, [scroll down to the date] we discussed the case of Swartsel v. Publix Supermarkets, Inc., 882 So.2d 449 [Fla. 4th DCA 2004] as an illustration of the necessity to be detailed in the preparation of mediation agreements. In Boyd v. Nationwide Mutual Fire Insurance Company, 4D03-2321 [Fla. 4th DCA 1.19.2005] the 4th District Court of Appeal rejected the argument that an offer of judgment was invalid because it failed to attach the general release and explained that the offer's summary of the release's substance was sufficient. What are mediators to do? My suggestion - follow Swartsel, id., since that opinion is consistent with our ethical obligations in conducting a mediation:

Rules for Certified and Court-Appointed Mediators, Rule 10.420(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.

We need the details! So do the parties!

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Wednesday, January 19, 2005

Characteristics of an Effective Mediator – A Persistent Mediator Really Cares!

Among the learning objectives in our mediation certification training programs is the identification of characteristics which enhance or undermine the effectiveness of the mediator. This article from the BBC News World Edition shows us that the value of tirelessly and thoughtfully [with a bit of prayer, too] mediating can be instrumental in facilitating “the case that wouldn’t settle”.

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Tuesday, January 18, 2005

Location, Location, Location – Part 2!

Here’s a very interesting follow-up to yesterday’s post on the same topic. This article in the New York Lawyer provides more thoughtful dialogue from not only some of the participants in the asbestos litigation, but also an New York University School of Law ethics professor. Disputing parties’ mindsets provide us with valuable insights. Read on!

To email me, click Perry S. Itkin

Monday, January 17, 2005

Location, Location, Location – Mediating in the Pool and Spa!

One of the learning objectives in our certification training programs is to identify those procedural elements which must be satisfied prior to the entry of the parties into the mediation room, including seating of parties and set up of the room. What if the room isn’t a room but a pool or a spa? What are the procedural elements to satisfy in those venues? Take a look at this article in the New York Daily News to see what an Arizona mediator proposes for the site of asbestos litigation mediation. Are there any ethical issues that you see?

To email me, click Perry S. Itkin

Friday, January 14, 2005

Cultural Insight – Mediating Cultural Traditions in the Context of State Law.

For a very interesting insight into how one community uses mediation to resolve conflicts between its cultural traditions and state law, read this article in the Green Bay Press-Gazette.

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Thursday, January 13, 2005

Florida Senior Judges as Mediators - A Report to the Court.

The Florida Supreme Court Committee on Alternative Dispute Resolution Rules and Policy issued its Amended Report, Case Number SC04-2482, to the Supreme Court on the issue of whether senior judges should be allowed, and if so under what conditions, to serve as mediators. The Appendices A - G provide valuable supporting materials.

This comprehensive, excellently written, and thoughtful report is well-worth reading!

To email me, click Perry S. Itkin

Wednesday, January 12, 2005

Mediation as a Sports Event!

Florida Rules of Civil Procedure, Rule 1.710(b) and Rule 1.800 both provide for a civil action to be ordered mediation in conjunction with arbitration upon stipulation of the parties or motion and order of the court. This combination of ADR processes also has practical application in the world of soccer as this article in USA Today demonstrates.

To email me, click Perry S. Itkin.

Tuesday, January 11, 2005

Retired Judges As Mediators – Only in California!

According to this article on retired judges in California who provide ADR services are, well, not happy about a move by the State Bar proposing to enforce a longstanding policy that requires anyone who makes a living doing alternative dispute resolution to retain active status. While mediation is not the practice of law, the State Bar is taking the “position” that ADR an provider is “occupying a position wherein he or she is called upon to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law.”

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.370 Professional Advice or Opinions, provides, in part:

(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.

Measured against Florida’s Rule, what do you think about the California State Bar position?

To email me, click Perry S. Itkin

Monday, January 10, 2005

“I’m a Certified Mediator, But What am I Really?”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.610 Advertising, provides, in part:

A mediator shall not engage in marketing practices which contain false or misleading information. A mediator shall endure that any advertisements of the mediator’s qualifications, services to be rendered, or the mediation process are accurate and honest.

Is it sufficient to state in your marketing materials, i.e. business cards, letterhead, Florida Bar News and other advertisements, simply to state that you are a “Certified Mediator?” The answer is an unequivocal no, according to Mediator Ethics Advisory Committee Opinion 2002-003, which, in summary, states:

The generic designation, “certified mediator,” is inherently misleading and therefore in violation of rule 10.610.

You may also want to read Mediator Ethics Advisory Committee Opinion 99-013 which, in summary, states:

It would be misleading, and thus ethically inappropriate, for a two member firm to list on its letterhead “Circuit Court Mediation” as a service provided without designating which attorney was certified if only one mediator was certified.

Finally, if you are [or were] a judge, from Florida or elsewhere, and now you’re a mediator certified by the Florida Supreme Court you might find interesting reading in Mediator Ethics Advisory Committee Opinion 2004-001 which, in summary, states:

Since the use of the term “judge” alone may confuse or mislead the public in violation of rule 10.610, the mediator may need to include clarifying information in order for such practice to be permissible.

Make sure you are in compliance!

To email me, click Perry S. Itkin

Friday, January 07, 2005

Cultural Misunderstandings and Mediation

This article on the Expatica website, dedicated to providing news and information for expats in the Netherlands, illustrates how useful mediation can be in diffusing “bullying” in the workplace in another country where cultural differences are a cause of the conflict. This article will help us as mediators appreciate diversity issues even more!

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Thursday, January 06, 2005

“But I Don’t Want to Go to Mediation!” – Part II. More Consequences.

In an earlier post, November 30, 2004, we examined an appellate opinion from Great Britain which provided an analysis a court may make when a party does not want to go to mediation. This article in the Metropolitan News-Enterprise in California illustrates the consequences of a contracting party’s refusal to go to mediation when the contract required mediation prior to litigation. Even if the refusing party “wins”, they may “lose” – i.e., a party refusing a request to mediate a dispute that ripens into litigation may not recover attorney fees at the conclusion of the litigation, even if that party is the prevailing party. By the way, the case is Frei v. Davey, (December 17, 2004, G033682).

All to say, a contract provision requiring mediation is enforceable, even in this unexpected way!

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Wednesday, January 05, 2005

New Application for Family Mediation - “Pre-Presuit” Divorce Mediation!

In this Gwinett Daily Post article, “Dear Amy” provides this Bride to Be with mediation as a helpful suggestion to resolve a dispute with her fiancĂ©. Is this matter suitable for mediation, i.e. if an agreement is reached, will it be doable and, if so, will it be durable? Will the marriage be durable? What do you think?

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Tuesday, January 04, 2005

A Mediator’s Demeanor – Is It Important?

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.350 provides that “A mediator shall be patient, dignified, and courteous during the mediation process.” This implies that we must always be mindful not only of what we say, but also how we say it. In this Third District Court of Appeal case, Valdes-Fauli v. Valdes-Fauli, 2004 Fla. App. LEXIS 19651 (Fla. 3rd DCA 2004) the trial judge was criticized [and defended in the dissenting opinion] for the content and intent of his communications. For example, the judge said to the Wife, “So do you think you're going to end up being an alimony drone?” Mediators can learn a valuable “demeanor” lesson by reading this opinion. After reading it, what are your thoughts about impartiality which Rule 10.330(a) Generally, addresses:
A mediator shall maintain impartiality throughout the mediation process. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual.

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Monday, January 03, 2005

Mediation and Rosa Parks – An Unwanted Legacy!

Rosa Parks, the “Mother of the Civil Rights Movement”, has filed two lawsuits against the hip hop duo Outkast for using her name in the title of a song she found vulgar according to this article in USA Today. The unwanted legacy revolves around her failing finances and mental state which make her appear interested solely in financial gain. Her lawyers are understandably looking forward to mediation. Why do you think that is?

To email me, click Perry S. Itkin