Breach of Confidentiality and Trust is Broken.

Florida Statute 44.401 - 44.406, the Mediation Confidentiality and Privilege Act, provides civil remedies if a mediation participant discloses a mediation communication. This is the first statute of its kind nationally. What if Minnesota had a similar statute and what would be its application in the situation presented in this article in the Brainerd Dispatch? School district officials reportedly disclosed confidential mediation communications made during a mediation between the school district and the teachers’ union.

To email me, click Perry S. Itkin

Can Evolution be Mediated?

One of the learning objectives of Florida’s mediation certification training programs is for participants to differentiate between issues which are appropriate for mediation and those that are not appropriate.

According to this article in the Macon Telegraph, a Cobb County, Georgia school district, in litigation for placing evolution disclaimers in biology texts, is expected to begin mediation on March 1st with the parents who have sued the district. The School District voted to take an appeal from the judge’s order [44 pages] in Selman v. Cobb County School District, 2005 U.S. Dist. LEXIS 432 [N.D. GA 2005]. The mediator is from the 11th Circuit Court of Appeals’ mediation office.

Do you think this issue is appropriate for mediation?

To email me, click Perry S. Itkin

“End Run” Around Nonparticipating Persons [Medicare] Disapproved

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

A mediator shall promote awareness by the parties of the interest of persons affected by actual or potential agreements who are not represented at mediation.

The Committee Notes to this Rule give as examples lienholders and governmental entities.

The Third District Court of Appeal in Pollo Operations, Inc. v. Tripp, 2005 Fla. App. LEXIS 2065 [Fla. 3rd DCA 2005] disapproved of the trial court’s granting Plaintiff’s request for an end-run around the mediated settlement agreement and Medicare statute instead of enforcing the agreement as written and “customarily implemented”.

Nice try! Or is it? The dissent makes good points also.

To email me, click Perry S. Itkin

“Here’s Why I Didn’t Answer the Mediation Questionnaire – Don’t Sanction Me!”

An attorney’s response to an order to show cause, issued by Fifth District Court of Appeal, as to why the appellate mediation questionnaire, forwarded by the court to the attorney, was filed over 2 months late included:

1. I relocated my office and . . . .
2. I was negotiating to form a new law firm and . . . .
3. Staff transitions and . . . .
4. Three hurricanes were heading my way and . . . .
5. My client had to return to Poland for treatment and . . . .

Did any or all of these rise to the level of excusable neglect? Read Matajek v. Skowronska, 2005 Fla. App. LEXIS 1667 [Fla. 5th DCA 2005] to find out.

Speaking of excusable neglect, don’t miss your CME requirements! Register for one of the Advancing the Profession programs.

To email me, click Perry S. Itkin

Here’s a Marketing Website for You. . . .

In my internet travels I came across this website created by Trey Ryder. He’s a marketing consultant who specializes in Education-Based Marketing for lawyers. Although designed for lawyers, there is a cornucopia of value for mediators as well. I thought you might enjoy a change of pace! Take a look.

By the way, don’t forget to visit my Mediation Training Center website for information about my training programs and continuing education seminars. [See, already employing ideas from that marketing website!]

To email me, click Perry S. Itkin

Impartiality is in the Eye of the Beholder!

In an earlier posts we addressed the issue of impartiality and the mediator’s demeanor. The Third District Court of Appeal in Valdes-Fauli v. Valdes-Fauli, 3D04-2079 (Fla. 3rd DCA 2005) points out that:

“While . . . trial judges [substitute mediators] . . . frequently make statements to encourage the parties to settle, it is not our perspective that controls, but rather whether the facts alleged would place a reasonably prudent litigant [substitute “mediant” – I made that word up!] in fear of not receiving a fair and impartial trial [substitute mediation]. [W]hat feeling resides in the petitioner’s [substitute “mediant’s”] mind and the basis for such feeling.

The question . . . focuses on those matters from which a litigant [substitute “mediant”] may reasonably question a judge’s [substitute mediator’s] impartiality rather than the court’s [substitute mediator’s] own perception of its ability to act fairly and impartially.”

We, as mediators, can learn from these creative, yet essential, substitutions!

To email me, click Perry S. Itkin

Mediating Class Actions in 2005 and Forward – It’s Not the Same Now!

In his own words, President Bush seeks to “end the lawsuit culture in our country” by signing the Class Action Fairness Act of 2005 today. What’s the impact on mediation? Well, for one thing it sets the venue of class action suits seeking $5 million or more in state court only if the primary defendant and more than 1/3 of the plaintiffs are from the same state. However, if less that 1/3 of the plaintiffs are from the same state as the primary defendant, and more than $5 million is the amount in controversy, the case will be heard in Federal court.

Next, the Act limits attorneys’ fees in settlements where plaintiffs get discounts or coupons on products instead of a financial settlement. The attorneys’ fees are linked to the coupon’s redemption rate or the actual hours spent working on a particular case.

There’s more!

After you read this Act, do you think it will have other effects on mediation?

To email me, click Perry S. Itkin

Med-Arb Hybrid Process Useful in a Multi-Party Case

Florida Rules of Civil Procedure Rule 1.710(b), Exclusions From Mediation, provides [in part]:

A civil action shall be ordered to mediation or mediation in conjunction with arbitration upon stipulation of the parties. A civil action may be ordered to mediation or mediation in conjunction with arbitration upon motion of any party or by the court, if the judge determines the action to be of such a nature that mediation could be of benefit to the litigants or the court.

According to this article in The Buffalo News, a hybrid Med-Arb process was a useful technique resulting in a $4 million dollar total mediation settlement between a severely burned plaintiff and Burger King and 2 other corporations, with apportionment among the defendants being determined by arbitration which is to follow mediation.

Good process thinking here!

To email me, click Perry S. Itkin

“Side Bet” in Settlement Agreement Renders Appeal Moot!

You’re gonna’ love this one! In an en banc opinion the Ninth U.S. Circuit Court of Appeals [only in California!], in Gator.com, Inc. v. L. L. Bean, 2005 U.S. App. LEXIS 2521 [9th Cir. 2005] held that the appeal was rendered moot notwithstanding a “side bet” in a confidential settlement agreement and that the “side bet” was not enough to preserve a justiciable controversy. Also, even though the parties agreed that the agreement was confidential and to be filed under seal, the appellate court instructed the parties to submit a copy of sealing order and when the appellate court reviewed the submission it determined no sealing order was actually entered. The court concluded that since the issue of mootness hinged on the specifics of the “confidential” agreement, it was appropriate to disclose the agreement’s content.

Nice try, folks – remember, no more side bets – that won’t confer jurisdiction!

Remember, too, you can obtain a registration form for the CME Seminar “Advancing the Profession” on my website at this CME direct link.

To email me, click Perry S. Itkin

Ethics Are Important – Sanctions and Re-training!

Florida Rules for Certified and Court-Appointed Mediators provide for Sanctions:

Rule 10.820(m) Sanctions:

If, after the hearing, a majority of the panel finds that there is clear and convincing evidence to support a violation of the rules, the panel shall impose such sanctions included in rule 10.830 as it deems appropriate and report such action to the center.

Rule 10.830 Sanctions

(a) Generally. The panel may impose one or more of the following sanctions:

(4) Additional training, which may include the observation of mediations.

Mediators are not the only professionals subject to sanctions [but you knew that!]. Read this article in the National Law Journal to learn what one Federal Court judge in California did in ordering an entire law firm of 80 lawyers to return to school for a refresher course on ethics! Just in case you're curious, you can read the entire 83 page opinion in Moser v. Bret Harte Union School District, 2005 U.S. Dist. LEXIS 1057 [USDC E.D. CA 2005] here.

Simply amazing!

Don’t forget to register for my CME program, “Advancing the Profession” – it contains 5 hours of ethics!

To email me, click Perry S. Itkin

Resolution Report, January, 2005 – Now Online!

The latest Dispute Resolution Center issue of the Resolution Report [January, 2005] is now online. It contains information about the ADR Rules and Policy Committee’s Report and Recommendations [to the Florida Supreme Court] on Senior Judges as Mediators [first reported on here last month], new MEAC Opinions, and an excellent Case and Comment article [humbly, I wrote it!].

Also, I’m proud to announce a new, extraordinary all day Continuing Mediator Education Seminar “Advancing the Profession”, which I’m presenting on March 18, June 3, September 30 and December 9, 2005. Please join us at this essential program!

To email me, click Perry S. Itkin

Pilot RV Mediation and Arbitration Program Proposed to be Permanent

On February 9, 2005, SB 1312 was filed in the Florida Senate for consideration in the 2005 session of the Legislature. It eliminates termination of the mediation and arbitration pilot program for disputes involving the manufacturer of recreational vehicles acquired on or after October 1, 1997. It amends F.S. 681.1096 and 681.1097.

To email me, click Perry S. Itkin

Revisions Proposed to AAA, ABA, ACR Model Standards of Conduct

The Model Standards of Conduct for Mediators were prepared from 1992 through 1994 by a joint committee composed of two delegates each from the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution (now the Association for Conflict Resolution).

On December 29, 2004, the Joint Committee reached consensus on a revision of the Model Standards of Conduct for Mediators and forwarded it for consideration to the leadership boards of the AAA, ABA Section of Dispute Resolution and ACR.

To email me, click Perry S. Itkin

Amendments to the Florida Rules of Juvenile Procedure Impact Dependency Mediation

The Florida Supreme Court, effective January 27, 2005, approved Amendments to the Florida Rules of Juvenile Procedure, 2005 Fla. LEXIS 92 [Fla. 2005] including Dependency Mediation, Rule 8.290 [pages 59-63]. The Dependency Mediation amendment now requires dependency mediation to comply with statutory timelines and deletes language in the prior rule which permitted a waiver of time requirements by all parties with court approval. - no wiggle room!

To email me, click Perry S. Itkin

94 Hours a Day – That’s a Long Day!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.380 Fees and Expenses, provides that “A mediator holds a position of trust. Fees charged for mediation services shall be reasonable and consistent with the nature of the case.”

General guiding principles in determining fees in Rule 10.380(b)(1) include that “any charges for mediation services based on time shall not exceed actual time spent or allocated.”

Take a look at this article from law.com which describes what happened to a solo practitioner [a lawyer] who billed the U.S. Navy for up to 94 hours for one day’s work – he must have been a very fast worker!

To email me, click Perry S. Itkin

The Melody Lingers On – GM & Fiat Mediate and More!

I've been training since Wednesday - that's why I haven't posted toward the end of last week. Now, I'm back!

General Motors Corporation and Fiat engaged in mediation to settle a dispute over whether Fiat can sell its money losing car division to GM. In 2000 the two entities incorporated the following mediation clause into Section 10.08 of their Master Agreement:

In the event of a dispute arising out of or in connection with this Agreement, prior to the exercise of any other remedies hereunder or at law, the party hereto seeking a remedy against the other party shall request that the dispute be submitted to the chief executive officers of the two parties by notice to such effect to the other party. The chief executive officers of both parties shall meet within 20 business days of such notice in a neutral setting in person to attempt in good faith to resolve such matter. In the event that they have been unable to resolve such matter within 10 business days after their meeting, either party may seek the legal remedies entitled to them hereunder or at law.

Although the mediation did not result in an agreement between the two, it certainly set the stage for the continuing negotiations without a dash to the courthouse according to this article in just-auto.com. This is a good example why mediators should encourage the parties, even after impasse, to continue to negotiate and leave them with a positive note at the end of mediation.

To email me, click Perry S. Itkin

“It’s Mediating Cats and Dogs!”

The Glenwood Springs [Colorado] City Council is exploring mediation in an effort to resolve pet related disputes among neighbors according to this article in the Glenwood Springs Post Independent. Do you see any parallels to mediating in Community Justice Centers [if we have any left in Florida]?

To email me, click Perry S. Itkin

Mediation and Prime Time TV – Joey!

This is different. Here’s a look at portions of this script from the January 20, 2005 episode of Joey and the brief [and sometimes too real] attempt to mediate. Enjoy!

To email me, click Perry S. Itkin