Judge v. Attorney Equals Mediation.

According to this article in the Orlando Sentinel the judge sentenced the attorney to 10 days in jail for repeated disrespect and unprofessional behavior. After spending 2 days in jail, the attorney was released pending the appeal in Mote v. State, Case No. 5D04-3801 [Fla. 5th DCA 2005]. In an unusual sua sponte appellate court order [you’ll have to enter the case number and hit the “submit” button; it’s docketed on 4/21/05], the Fifth District Court of Appeal directed the judge and the lawyer to mediate their differences. This is a very interesting application of mediation!

Have a nice weekend!

To email me, click Perry S. Itkin.

“It’s Between Me and You . . . .”

The mediation lesson to be learned from Sunshine Properties, L.L.C. v. Dept. of Transportation, 2005 Fla. App. LEXIS 5981 [Fla. 4th DCA 2005] is that if one party intends to reach a settlement agreement with all parties in the litigation, then all parties should attend the mediation conference and agree on the settlement. In this case the settling party did not represent the interests of the remaining defendants and could not settle their claims for them.

To email me, click Perry S. Itkin.

“I’m Not a Criminal; I’m a Mediator – What’s Reasonable Doubt Got to do with Me?”

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.330, Impartiality, provides [in part]:

(b) Withdrawal for Partiality. A mediator shall withdraw from mediation if the mediator is no longer impartial.

Did you ever wonder how you objectively can tell if you are “no longer impartial”? Just in case you did, you might want to read Bell, et al. v. Greissman, et al., 2005 Fla. App. LEXIS 5436 [Fla. 4th DCA 2005], in which the Fourth District Court of Appeal applies the reasonable doubt standard in resolving questions involving jurors’ ability to be fair and impartial. Do you think this standard would [should] apply to mediators too?

To email me, click Perry S. Itkin.

“Where Can I Get a Job as a Mediator?”

The 15th Judicial Circuit [West Palm Beach] and the 7th Judicial Circuit [St. Augustine] are looking for Certified Circuit/Family Mediators according to these Florida State Courts System’s Job Opportunities postings. Are you interested? Better hurry, though, since the 15th Judicial Circuit application period ends April 28th and the application period for the 7th Judicial Circuit ends April 27th! However, here’s another one from the 15th Judicial Circuit for a part-time position and the application period remains open until the position is filled. Good luck!

To email me, click Perry S. Itkin.

“I’ll Take the 5th – Or Not!”

In Holler v. De Hoyos, 2005 Fla. App. LEXIS 5566 [Fla. 5th DCA 2005], the parties and counsel were ordered to attend appellate mediation. Sanctions for failure to comply with appellate mediation program procedures without good cause would be imposed. De Hoyos did not attend; her lawyer, the opposing counsel and party did. An agreement was negotiated in her absence [how could that be?] and De Hoyos later refused to sign it – imagine that!! She was sanctioned – why? You’ll have to read the opinion [it’s short] to find out!

To email me, click Perry S. Itkin.

“I’m a Certified Mediator in Florida – Is That Useful in 49 Other States?”

The answer is a definite maybe! Okay, you now live in Florida and someone, while you’re in Florida, asks you where you’re from, you reply “New York, Tennessee, California, etc., etc., etc.” [unless you were born here then you’re from Florida, right?]; now, let’s say you live in Florida and are on vacation in Oregon and someone asks you where you’re from, you reply “Florida” – why is that? Does anyone care? Probably not but it’s a nice introduction to the next paragraph!

Anyway, now that you’re a Mediator certified by the Supreme Court of Florida, is this certification transportable to any other state? Maybe! Here’s a link to a study from the University of Arkansas at Little Rock that was done in 2002 which may answer the question. Although it was done a few years ago, there are links to each of the relevant web locations in the states listed. So, if you’re thinking of moving from Florida and want to mediate in your new “Home State”, then . . . .

To email me, click Perry S. Itkin.

Mediating in the Sunshine – Hey, We’re in Florida!

The judge decided that Florida’s “Sunshine Law”, F.S. 286.011, was violated and ordered the citizen plaintiffs and the defending Florida Environmental and Resource Regulatory Group to mediate their differences, according to this article in The Citrus County Chronicle – another example of self-determination in action.

To email me, click Perry S. Itkin.

Mediation on The Big Screen.

Well, not exactly; but, according to this article in The London Line, London’s Alternative Newspaper, mediation does play a role in The Interpreter, a political thriller where mediation is questioned as a suitable alternative to intervention [that’s not the whole plot line just a part].

Hmm, Nicole Kidman interpreter and mediator?

To email me, click Perry S. Itkin.

“When is a Duck not a Duck?”

You know the saying, “If it looks, walks and quacks like a duck, it’s a duck” [or something like that]. But what if it’s not? To put it another way, when is “mediation” actually “arbitration”? It seems the answer is that it’s the process not the label that controls, as it was in the Second District Court of Appeal franchise dispute case, Maschino v. Val-Pak Direct Marketing Systems, Inc., 2005 Fla. App. LEXIS 4700 [Fla. 2nd DCA 2005]. Although the dispute resolution process required the parties to ‘mediate’ a dispute, it [“quack, quack, quack”] really was arbitration!

To email me, click Perry S. Itkin.

A Mediator’s Demeanor, Part 2 – Is It Important?

Of course it is! [But you knew that, right? Especially after reading A Mediator's Demeanor, Part 1.] Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.350, Demeanor, provides “A mediator shall be patient, dignified, and courteous during the mediation process.” Why on earth do we need a rule to tell us that?!?

We can learn from this example of a judge’s hostility and a lawyer’s baiting, belittling, provoking and showing disrespect to the court as reported in this story in the New York Law Journal about People v. Straniero, 2005 NY Slip Op 02770 [2005]. We are professionals, right?!? By the way, if you were the mediator in a case where one of the lawyers exhibited conduct like that demonstrated in this case, how would you address it?

To email me, click Perry S. Itkin.

Conflict? – Well, You Be the Judge!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.340, Conflicts of Interest, provides [in part]:

(a) Generally. A mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.

and

(c) Effect of Disclosure. After appropriate disclosure, the mediator may serve if all parties agree. However, if a conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the parties.

What if a mediator, like the judge in this article from the New York Law Journal, has a “significant social and professional relationship with a party, who also happens to be an attorney, and a disclosure is made with no objection? Should the mediator continue to serve? Maybe it’s a good idea to read the article for more details before answering! Now, what do you think?

To email me, click Perry S. Itkin.

Co-Co-Co Med-Arb – Whaaat?!?

No, I’m not stuttering. The Florida Rules of Civil Procedure actually provide for mediation to be used in conjunction with arbitration [Fla. R. Civ. P. 1.710(b)] and for arbitration to be used in conjunction with mediation [Fla. R. Civ. P. 1.800]. According to this article in the Bowling Green Daily News a church leadership dispute will be resolved, not by the court, but by a three person mediation team followed by, if necessary, binding arbitration. The mediation location is rather interesting as is this blend of processes. A clever idea, BUT. . . do you think the same three mediators should serve as the panel of arbitrators?

To email me, click Perry S. Itkin.

“What’s The Meaning of . . . ?”

Here’s something clever for you to take a look at – an on-line Mediation Dictionary! It’s presented compliments of The Mediation Agency with offices in the United Kingdom [Northern Ireland, actually] and the United States [Arizona].

To email me, click Perry S. Itkin.

Johnnie Cochran – Mediator!

Johnnie Cochran, an incredibly instinctive trial lawyer, was also a mediator according to this interesting story in The Selma Times-Journal.

To email me, click Perry S. Itkin.

Is This You?

There’s a personality type called ‘The Mediator’ according to this article in the Plainview Daily Herald. Is this you?

To email me, click Perry S. Itkin.

“I Am What I Am!”

Florida’s Rules for Certified and Court-Appointed Mediators provides that the mediator shall 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. . . .” Rule 10.420(b)(3), Conduct of Mediation, Adjournment or Termination.

Sometimes this can be a problem, especially if a party is pro se, as indicated in this article in the Boston Herald where a pro se defendant appealed the competence of his attorney – think about that for a minute!

To email me, click Perry S. Itkin.

P.S. There was no posting April 7th due to the ubiquitous “technical difficulties” experienced yesterday with Blogger.

“The Perfect Mediation” – A Video!

You’re going to enjoy this 4 minute video of the “perfect mediation” – notice the skillful techniques employed by the mediator. Be patient, though, the video takes a little while to load [especially if you use dial-up] – it’s worth the wait and it's fun!!! By the way, the video and others are available for purchase at www.mediate.com.

To email me, click Perry S. Itkin.

NASD Dispute Resolution Now in All 50 States + Online + “Over There” [Well, England Anyway]!

The Dispute Resolution Division of the NASD, according to this press release, now has mediation [and arbitration] hearing locations in all 50 states, plus Puerto Rico and London – 68 hearing locations in total. The Securities and Exchange Commission has approved, effective no later than June 5, 2005, a rule change to allow arbitrations abroad [i.e. in London] – this costs more, of course.

If you are interested in becoming a mediator for the NASD, this link will be of value for you.

To email me, click Perry S. Itkin.

Pope John Paul II [1920 – 2005] – A Mediator.

According to this article in MercoPress News, Pope John Paul II played a leading role as mediator in preventing an armed conflict between Argentina and Chile shortly after he became Pope in 1978. He successfully implemented papal mediation which led to the creation of a lasting peace.

May he rest in peace.

To email me, click Perry S. Itkin.

Have You Ever Experienced the “Stalingrad Defense” in Mediation?

Sure you have! You know, the party who challenges every single point to the very end [or to put it in another context, ‘we’ll all go down in flames if need be’] – that’s like the “Stalingrad Defense”. To get a better understanding of the concept, take a look at this article in The Connecticut Law Tribune about the divorce litigation that lasted longer than the marriage. What personal characteristic or characteristics would a good mediator need to have when faced with the “Stalingrad Defense”?

By the way, don't forget to turn your clocks ahead one hour Saturday evening at 2:00a.m. [or at some time that's more convenient for you]. If you happen to be mediating at that time, does that mean you get to bill for the extra hour? Have a good weekend!

To email me, click Perry S. Itkin.