Thursday, March 31, 2005

A $300,000 “Success Bonus” for a 5 Day Mediation – A Whaaat!?!?!?

Wait a minute – we know that mediators cannot charge a contingency fee. Florida Rules for Certified and Court-Appointed Mediators, Rule 10.380(f) in unmistakable English states:

Contingency Fees Prohibited. A mediator shall not charge a contingent fee or base a fee on the outcome of the process.

So, what’s this “success bonus” all about? For starters, that wasn’t the type of fee claimed by the mediator [I know, you’re relieved]. According to this article in the Connecticut Law Tribune, a client sued his lawyer [that’s right, the lawyer claimed entitlement to the “success bonus”] in Federal court to recover fees paid to the lawyer arising from the client’s five-day “pressure cooker” divorce mediation.

Read the article, envision you were the mediator and observed the mediation conduct as was reported, and then think about what you would, or would not, do? Also, give some thought to the confidentiality of mediation communications and the application of Florida's “Mediation Confidentiality and Privilege Act”, F.S. 44.401-44.406. Would any exceptions apply in this case?

To email me, click Perry S. Itkin.

Wednesday, March 30, 2005

Does Go Sit in the Corner Equal Caucus?

According to this article in the South Florida Sun Sentinel a Miami-Dade County judge made 2 defense lawyers sit in a corner of the courtroom and write letters of apology to the lead prosecutor for allegations of misconduct they made against the prosecutor. The first effort at apologizing was characterized by the judge as “non-apologies” and she made the lawyers do it over again.

What can mediators learn about the power of the apology, its application in mediation and its implementation [among other things – a public or private apology]?

To email me, click Perry S. Itkin.

Tuesday, March 29, 2005

Mediating Between the 3 Little Pigs & the Big Bad Wolf!

No, I have not lost my mind! Here’s a cute animation for you to play for your young children, grandchildren and great-grandchildren [you might even secretly enjoy it yourself]. It’s a nice way to introduce mediation to them, to help explain what you do as a mediator, and to show them how they can resolve disputes of their own. Very clever of the Veteran’s Administration [imagine that]!

To email me, click Perry S. Itkin.

Monday, March 28, 2005

Small Claims Mediation Scores Big!

According to this article in The News-Press: Bonita Springs, parents from 2 rival roller hockey leagues went to court over a score board held hostage and their dispute was resolved in [you guessed it!] Small Claims Mediation.

To email me, click Perry S. Itkin.

Friday, March 25, 2005

Mediators and Practice Development – Marketing!

Here’s something new for you. It’s called ADR411 offered as a monthly subscription. It is the first Practice Development website which offers ADR professionals what they would need to link together the different aspects of their mediation and arbitration practices. The site, updated continuously, provides members access to an array of tools which can help them develop and market their practice. Take a look; I think you'll find it interesting!

To email me, click Perry S. Itkin.

Thursday, March 24, 2005

Parenting Coordination - An Update.

The Florida Supreme Court Parenting Coordination Workgroup submitted to Florida Supreme Court Chief Justice Pariente a proposed Model Parenting Coordination Administrative Order, including a model order of referral, and a guide for parenting coordination training.

This workgroup was appointed by Chief Justice Pariente to “develop a model administrative order and appropriate strategy regarding parenting coordinators” and “address the various legal and due process concerns associated with the use of parenting coordinators and propose recommendations ... to protect parents’ rights and the best interests of children.” The Workgroup also reviewed the concerns expressed by Governor Bush when he vetoed the Parenting Coordination Bill which was adopted in the 2004 Legislative Session [SB 2640] and reviewed the Senate Interim report on Parenting Coordination and Domestic Violence.

One of the requirements to become a parenting coordinator is to complete the 40 hour Family Mediation Certification Training program.

To email me, click Perry S. Itkin.

Wednesday, March 23, 2005

“I’m a Lawyer but I’d Rather be a . . . .”

A career change survey for lawyers: “I would rather be a . . . .”
a) race car driver
b) politician
c) researcher
d) ____________. [Take a wild guess!]

Your answer, please!

The answer is found in this survey by Robert Half Legal, a legal staffing company.

To email me, click Perry S. Itkin.

Tuesday, March 22, 2005

“I Changed My Mind!”

This actually could be a good thing. Take a look at Judge Gross’s concurring opinion in Burke v. Snyder, et al., 30 Fla. L. Weekly D 586 [Fla. 4th DCA 2005] for powerful comments on the wisdom of changing one’s mind. His remarks are on page 5 of the opinion – that’s all you really need to read on this point.

To email me, click Perry S. Itkin

Monday, March 21, 2005

An Editorial Note - Excuse the Absence!

No postings were possible on Thursday, March 17 and Friday, March 18, 2005, since Blogger, which hosts Florida Mediator, was “down” [with the flu?!?]. Please excuse the absence.

To email me, click Perry S. Itkin

Mediation and the State Attorney!

According to this article in The Jacksonville Times-Union, the State Attorney's Office there has a Consumer Mediation Program where a consumer with a business dispute mediates with the business and a mediator appointed by the State Attorney's Office. Any concerns here?

To email me, click Perry S. Itkin

Wednesday, March 16, 2005

A Criminal Mediation Docket – What’s That All About?

The Kentucky Post reports in this article on a criminal court Judge’s unique way to cut down his criminal docket. Is this really mediation or is it something else? What do you think?

To email me, click Perry S. Itkin.

Tuesday, March 15, 2005

Mediating with Hurricanes – How’s It Going?

In an earlier post, November 26, 2004, I covered the mediation program established by Florida’s Department of Financial Services to resolve disputes between insurers and policyholders as a result of the damage wrought by last season’s hurricanes. Mediation is getting results according to this article in The News-Press and this one in the Sun Herald.

To email me, click Perry S. Itkin.

Monday, March 14, 2005

“Hide ‘n Seek” Mediation with Florida’s Public Records!

Did you know that we have mediation in disputes involving citizens who are denied access to public records, are asked why they want to see them, are required to put their requests in writing, or meet other unlawful requirements? Well, we do and it’s a mediation program within the Office of the Attorney General! Take a look at Florida Statute 16.60 as well as this article in the South Florida Sun-Sentinel.

To email me, click Perry S. Itkin.

Wednesday, March 09, 2005

Another Time Out!

A quick note to let you know that I won't be posting Thursday or Friday since I'll be in Tallahassee attending the Supreme Court's ADR Rules and Policy Committee meetings. See you again on Monday!

To email me, click Perry S. Itkin

“You’re a Lawyer from Where?” – MJP

Positions for and against The Florida Bar proposed rule changes addressing lawyers practicing across state boundaries were argued last month to the Florida Supreme Court. The Florida Bar proposed allowing out-of-state lawyers to come into Florida to handle transactions, arbitrations, mediations and other dispute resolution matters as long as there is a “nexus” – a client who resides in or has a business where the lawyer is admitted or if it relates to an area of the lawyer’s practice. To read more about the debate, read this article in the current issue of The Florida Bar News.

To email me, click Perry S. Itkin

Tuesday, March 08, 2005

“You Want Me to Agree to What?!? – Not to Sue Your Client Again!”

Rule 4-5.6(b) of the Rules of Professional Conduct for lawyers prohibits clauses in settlement agreements that restrict the lawyer’s right to practice.

“A lawyer shall not participate in offering or making:(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties.”

The Professional Ethics Committee of The Florida Bar has published Proposed Advisory Opinion 04-02 [revised] which highlights a particular provision in a settlement agreement which violates this rule. The settlement provision also contains interesting language requiring the settlement to be confidential.

To email me, click Perry S. Itkin

Monday, March 07, 2005

Failure to Notify Appellate Court of Settlement & Sanctions – A Case of 1st Impression!

Florida Rule of Appellate Procedure 9.350(a) provides:

Dismissal of Causes When Settled. When any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.

In Merkle v. Guardianship of Jacoby, 2005 Fla. App. LEXIS 2232 (Fla. 2nd DCA 2005) the Second District Court of Appeal, in a case of first impression, sanctioned counsel for failing to immediately notify the court of the settlement of a pending case before the court’s decision on the merits which occurred more than a year prior to the decision.

Among counsel’s reasons for not complying with the rule were that the settlement was conditioned on a collateral agreement [so what!], that he was continuing with the appeal to gain a perceived advantage in other unrelated matters [this is really bad!], and that he was inexperienced in appellate matters [this helped a little].

Among the consequences of the above failure to comply the the rule is the Second District Court of Appeal's order in the same case denying a Motion to Vacate its prior ruling based on the legal principle that the “cat is out of the bag”.

To email me, click Perry S. Itkin

Wednesday, March 02, 2005

Time Out!

Today I start my 5 day, 40 hour Family Mediation Certification training which concludes on Sunday, March 6th. Training and blogging - tough to do! I'll be posting again on Monday, March 7th. See you then!

Take care,

To email me, click Perry S. Itkin

Tuesday, March 01, 2005

A Mediator Declines to Mediate – Why?

Mediator Ethics Advisory Committee Opinion 2004-006 answers the question posed above.

In summary, when a mediator receives a court order in advance of a mediation, which contains provisions which are contrary to the mediator’s role and requires the mediator to act in a manner that is inconsistent with the mediator’s ethical rules, the mediator should decline participation in the mediation.

This is related to a court ordered mediation and good faith. It’s an important opinion to read.

Also, one segment of my Advancing the Profession CME program will address “good faith” participation in mediation.

To email me, click Perry S. Itkin