Volunteer Mediators’ Contributions Are Recognized

As Governor Bush is approving or vetoing legislation from this past session of the Florida Legislature and the press is covering that, I wanted to share with you something that is equally newsworthy from that legislative session. The House of Representatives adopted a Resolution [HR9021] commending Florida’s volunteer mediators for their commitment to their communities and for their dedication to a program that, for their untiring efforts, has become a highly successful method of conflict resolution. The resolution also contains some interesting information about Florida mediation.

Congratulations! A recognition that is well deserved!

To email me, click Perry S. Itkin.
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“Mediation’s Aura”

According to this Star Banner article, the judge and the attorney in my prior post titled “Judge v. Attorney Equals Mediation” apparently resolved their differences since the judge vacated his contempt order entered against the attorney. This occurred only after the Fifth District Court of Appeal ordered the two to mediation. It is not known whether mediation actually took place – hence, “mediation’s aura”! Powerful stuff!!!

Enjoy the long Memorial Day weekend and stay safe!

To email me, click Perry S. Itkin.
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“Post-Judgment Mediation”

Ever wonder what value there is in parties participating in post-judgment mediation? After all, a judgment has been entered in favor of one side so “why should I mediate; I already won?!?”

In an earlier post I wrote about “mid-judgment mediation” in the litigation involving Ron Perelman and Morgan Stanley & Co. Now that the jury awarded him $850 million in punitive damages, in addition to the $604.3 million dollar compensatory award, Morgan Stanley has said it will appeal.

Why discuss settlement? According to this Associated Press article there are several reasons both sides should consider it. Hmmm!

No blogging yesterday due to “technical difficulties”!

To email me, click Perry S. Itkin.
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“Mediating Internationally”

England’s Centre for Effective Dispute Resolution [CEDR] has online tips for lawyers who participate in international mediation. Mediators will find it to be a very useful site which identifies potential sources of impasse as long distances, cultural misunderstandings, political interventions and shifting commercial agenda. It’s interesting – take a look!

To email me, click Perry S. Itkin.
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“Don’t Settle!”

Here’s a bit of a twist. Clients want to settle. Lawyers advise “Don’t settle”! Clients were happy with the settlement offer. Lawyers were not and gained an additional $1.4 million more in settlement. Sounds good, right? Clients then sued lawyers for malpractice. What?!? According to this article in The Recorder the clients allege that the lawyers inflicted emotional distress on them by prolonging the litigation and subjecting them to depositions and court appearances.

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.410, Balanced Process, provides:

A mediator shall conduct mediation sessions in an even-handed, balanced manner. 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.

Hmmm!!!! What’s our responsibility to the participants in the above scenario? How would you address the situation if you were the mediator? Would you continue to mediate, adjourn, or terminate? Anything else?

To email me, click Perry S. Itkin.
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“We Made a Mistake – No, You Made a Mistake!”

In DR Lakes, Inc. v. Brandsmart U.S.A. of W. Palm Beach, 819 So.2d 971 [Fla. 4th DCA 2002], the Fourth District Court of Appeal held that a recognized exception to mediation confidentiality and privilege is where the issue is whether there had been a mutual mistake in a settlement agreement and that the trial court should hold a trial on the issue of mutual mistake.

In an opinion, following remand, Brandsmart U.S.A. of W. Palm Beach v. DR Lakes, Inc., 2005 Fla. App. LEXIS 7222 [Fla. 4th DCA 2005] the court defined mutual mistake as “when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” What’s the burden of proof and who won – the buyer or the seller – in the motion to enforce the settlement agreement? You’ll have to read this informative opinion to find out [it’s a short one].

Have a good weekend!

To email me, click Perry S. Itkin.
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Once A Mediator, Always A Mediator!

Facts: The mediator repeated information which he learned in one mediation [while serving as the mediator] in a second mediation in which he was acting in the role of attorney.

Is this permissible? Nope! Are you sure? Yup! What’s the problem? You’ll have to read one of the new Mediator Ethics Advisory Committee Opinions [2004-011] to find out.

Should the mediator who is now acting as an attorney withdraw as attorney? Hmmm?!?

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.620, Integrity and Impartiality, provides:

A mediator shall not accept any engagement, provide any service, or perform any act that would compromise the mediator's integrity or impartiality.

What do you think? Withdraw – yes or no?

To email me, click Perry S. Itkin.
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Even Mediation Firms Must Be Impartial!

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

(a) Generally. 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.

Well, does the same rule apply to mediation firms as opposed to individuals? It certainly should as was the lesson learned by JAMS, one of this country’s largest providers of ADR services, according to this article in The Recorder.

To email me, click Perry S. Itkin.
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“Might As Well Go to Court – We Have Nothing to Lose!”

Famous last words! In trial, anything can happen and actually did as reported in this story in Forbes which illustrates another litigant maxim, “Oops, I should have settled”.

While $20 million seems like a lot of money to settle a case [well, it is], it’s much less than the $604 million dollar verdict [with punitive damages as the next phase]. The judge in the case of Coleman Parent Holdings Inc. v. Morgan Stanley & Co., 03-5045, 15th Judicial Circuit, Palm Beach County, Florida [Ron Perelman is the Plaintiff’s controlling shareholder] asked the lawyers if they thought additional mediation [the first round ended in impasse] might be helpful according to this story in Bloomberg. Guess what - they’re talking! [I know, you’re shocked.]

This case is a good example of post-judgment mediation, or better said, mid-judgment mediation [I just made that up]!

To email me, click Perry S. Itkin.
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The Resolution Report – Now Online!

I’m back after a wonderfully successful 40 hour Circuit Civil Mediation Certification Training!

While I was training, the first ever edition of the Dispute Resolution Center’s Resolution Report was posted online. Don’t forget to read my Case and Comment article – I think you’ll enjoy it [it’s informative, too]!

Also, there are only a few spaces available in our June 3rd CME Program, Advancing the Profession. If you’re interested, please register now.

To email me, click Perry S. Itkin.

Authority – Frequently An Issue!

According to this article in The Washington Post, authority at mediation [or the lack of it] became an issue in the multi-billion dollar suit between Ronald Perelman and Morgan Stanley. So, no matter how large or small the dispute, authority is frequently an issue!

I won’t be blogging again until next Monday, May 16th. I’m presenting my 40 hour Circuit Civil Mediation Certification Training program starting on Wednesday and setting up tomorrow.

Also, don’t forget that my next CME program is Friday, June 3rd and you can get registration information on my website, Mediation Training Center.

All to say, have a good week!

To email me, click Perry S. Itkin.

Could This Happen Here?

A North Carolina judge refused to issue a preliminary injunction to prevent governmental officials from participating in “closed door” mediation sessions, according to this article from The Asheville Citizen-Times. In Florida we have a statute, F.S. 286.011, addressing mediation and governmental entities. So, could this happen here?

By the way, there was no blogging yesterday - I was mediating from early morning to late into the evening.

To email me, click Perry S. Itkin.

“Juggling Cultures to Prevent Civil War”

According to this article in the Washington Post, this military liaison’s duty is to mediate among the various ethnic factions seeking control of Kirkuk and to prevent a civil war. And you thought you had a tough day today!

To email me, click Perry S. Itkin.

“What Were You Thinking?!?”

Have you ever wondered [or just thought about] whether, as a Mediator, you would be subpoenaed to testify, not about what was said during a mediation conference, but rather what you were thinking about on a particular point or points, i.e. to probe your thought process? After all, we do think during a mediation, right? For example, Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.310, Self-Determination, provides in part:

(d) Postponement or Cancellation. If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.

Who has the responsibility to think about whether the mediation should be cancelled or postponed? We do [but you knew that]!

Some “thoughtful” guidance can be found in the Fifth District Court of Appeal case of Department of Highway Safety, etc., et al. v. Marks, 30 Fla. L. Weekly D 780 [Fla. 5^th DCA 2005]. It’s an interesting analysis and is relevant to what we do.

To email me, click Perry S. Itkin.

If You Could Change Your Name, Would it be “Mediator”?

The Pope did that!! According to this article in Forbes, Cardinal Joseph Ratzinger’s [now Pope Benedict XVI] selection of the name Benedict suggests that he wants to be a mediator, communicator, and an advocate of peace.

To email me, click Perry S. Itkin.