Here’s a Valuable Tool for You!

Florida Mediators.org is website that allows visitors requiring the services of a qualified mediator to quickly identify suitable professionals to help settle their dispute. Users can easily search by locality, qualifications, background/case experience and date availability [this expedites the scheduling process by trial lawyers and law firm staffers who schedule mediations]. Your Professional Profile™ and Availability Calendar are online as a “one-stop shop” to facilitate getting yourself professionally “out there” [i.e., Planet Earth – before “War of the Worlds”!].

Plus, like Mom, it even reminds you! Well . . . it reminds you via email to update your calendar when you have not done that for awhile!

Take a look – it’s worth investigating!

To email me, click Perry S. Itkin.

“We Agree!” – Now What?

Like the Carpenters [Remember them? Say ‘yes’!] sang, “We’ve Only Just Begun”. Here’s why - one of the mediator’s ethical responsibilities is to assist the parties in the development of the terms of agreement. Development is a 4 part “ion-process” [I made that up!]:

• Discussion
• Formalization
• Implementation
• Memorialization

As prescribed in Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420 Conduct of Mediation, (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.

The parties’ understandings of who is obligated to do what, by when, how, where, and sometimes why, all clearly written [i.e., unambiguous, detailed content], is critical in order to avoid future problems such as is illustrated in this article in The Citrus County Chronicle.

To email me, click Perry S. Itkin.

Listen to What the Mediator “Advises” or Else! Whaaat?!?

A Massachusetts [could this happen in Florida?] trial judge denied a party’s motion for summary judgment partly on the basis that the defendant insurance company’s failure to follow the advice of several different mediators [notice the plural here] over a four year period could constitute evidence of bad faith refusal to settle in the case. The judge’s lengthy opinion [it takes some time to download] in Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company, Civil Action No. 95-3079-A [Mass. Superior Court 2004] contains the following language on pages 11 and 12:

“At least one factor deprives [Wausau] of the conclusiveness necessary for summary judgment . . .: the recommendation of the mediator James Lynch that Wausau should make an offer in the vicinity of the policy limit.”

“The detailed chronology recited above contains abundant indications of issues of irrational or bad faith behavior . . . includ[ing] . . . Wausau’s imperviousness to the views of mediator Steadman...[and] Wausau’s continuing immobility against the views of mediator Shubow”.

Hmmm! Do you have a problem with mediators giving advice? Take a look at Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.370 Professional Advice Or Opinions

(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.

Wait!!! What about the confidentiality of mediation communications? Take another look at the confidentiality provisions of Florida’s Mediation Confidentiality and Privilege Act, especially F.S. 44.405.

And, in the spirit of mediation, can you think of anything else?

You might like to know that this decision has been appealed.

To email me, click Perry S. Itkin.
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What is “Constructive Advocacy”?

“You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone!”

Imagine family law advocacy described as a process of candor, courtesy, cooperation, efficiency, less cost [financial and emotional], mutually acceptable resolutions, reduced stress, reduced waste of resources and respect. Don’t these principles sound familiar to mediators?

“Constructive advocacy” is a counseling, problem-solving approach for people in need of help in resolving difficult issues and conflicts within the family. This approach includes consideration of all available means of settling disputes – including, [guess what?!?] mediation.

Where does all of this come from? The Family Law Section of The Florida Bar has published Bounds of Advocacy: Goals for Family Lawyers as a guide to Family Lawyers confronting professional and ethical dilemmas. Among the global tenets is “constructive advocacy” as the goal of all family law attorneys.

For some serious educational fun, while reading Bounds of Advocacy [it really is worth reading], try substituting the word “Mediator” for the word “Attorney” where you believe the Goal would have application to Mediators [especially in Sections 2 and 3] and learn just how comfortable the substitution feels. It’s an interesting exercise!

Thank you Family Law Section for publishing this for Family Lawyers – it’s also a good tool for Family Mediators to have at mediation and to share with those engaging in “Destructive Advocacy”!

To email me, click Perry S. Itkin.
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“Think About It!”

During mediation we are required to think [i.e. make decisions] about such matters as which technique to employ, what strategy will work here, why the parties are stuck, whether a party is meaningfully participating in mediation, whether mediation should be adjourned or terminated, and so on. Even though the parties are the primary substantive decision-makers in mediation, we are the primary procedural decision-makers [mediators control the procedures to be followed during mediation].

This article appearing in the June, 2005 Link and Learn Newsletter is a very helpful 7 step decision-making guide which we can use during mediation. It has an organizational development focus and is quite adaptable for mediation. Take a look and “think about it!”

Have a pleasant weekend!

To email me, click Perry S. Itkin.
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Just What is “Nonverbal Conduct Intended to Make an Assertion”?!?

Florida’s Mediation Confidentiality and Privilege Act defines “Mediation Communication” [F.S. 44.403(1)] as:

an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication.

How does “nonverbal conduct intended to make an assertion” work in the real world?

At this time, there are no Florida appellate opinions interpreting this phrase. However, Bridges v. Metromedia Steakhouse Company, L.P. d/b/a Ponderosa Steakhouse, 807 N.E.2d 162 [Ind. Ct. App. 2004] in a case of first impression, is instructive for us. One of the main issues is whether the trial court abused its discretion when it allowed an insurance adjuster to testify regarding the extent of Bridges’ injury based upon her observation during the parties’ mediation.

It’s easy to read and interesting!

To email me, click Perry S. Itkin.
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Pre-Suit Circuit Civil Mediation Agreement is Enforceable

We often think of pre-suit mediation as occurring in only Family cases. However, with increasing frequency, Circuit Civil matters are being mediated pre-suit also.

In Fulford v. Drawdy Brothers Constuction, II, Inc., 30 Fla. L. Weekly D 1386 [Fla. 4th DCA 2005] the Fourth District Court of Appeal affirmed the trial court’s entry of a temporary injunction enforcing a pre-suit mediated settlement agreement which modified a non-compete agreement between a former employer and former employee.

How about that!

To email me, click Perry S. Itkin.
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How Do You Make a Sandwich?

We would all agree [I hope] that communication is a critical component of mediation. In fact, Florida’s Rules for Certified and Court-Appointed Mediators,

Rule 10.220, Mediator's Role provides in part “The role of the mediator is to reduce obstacles to communication . . .”

and

Rule 10.230, Mediation Concepts provides in part “Mediation is based on concepts of communication, negotiation, facilitation, and problem-solving . . . .”

Of course, you know how to make a sandwich – right? How would you explain [i.e. communicate] that to an extra-terrestrial? No, really, think about it!! For example, you might start by saying, “Take 2 slices of bread.” Stop! You’re assuming the extra-terrestrial [we’ll call it E.T. – not the movie] knows what bread is, let alone what a slice of bread is. Get the idea!

Well, if you want to actually learn how to communicate and mediate with E.T., here’s a course for you [I am not making this up]. Once you get through the basics, and after the mid-semester break, on October 26th you’ll learn how to apply principles of Conflict Resolution and Mediation to E.T. affairs.

It’s not too late to register! If you do enroll, please let me know how you do on the final exam!

To email me, click Perry S. Itkin.
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“Am I Qualified to Be a Mediator? What’s New?”

The Florida Supreme Court ADR Rules and Policy Committee [on which I serve] filed its Petition to amend Florida’s Rules for Certified and Court-Appointed Mediators relating to revising the qualifications for mediator certification and other matters. The proposed amendments are significant. In addition a proposed Administrative Order has been filed with the Petition. In order to assist in your understanding of the point system, here’s a chart reflecting the proposed changes.

This proposal is extremely important and each of the linked documents is worthwhile reading!

The case number is SC05-998. Written comments and requests for oral argument are due at the Florida Supreme Court no later than August 1, 2005. If oral argument is scheduled, it’s not likely to occur before September, 2005.

What do you think about the proposed revisions?

To email me, click Perry S. Itkin.
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Governor Signs the “Glitch Bill” – Impact on Mediation

The Governor has signed a bill relating to the State Judicial System, otherwise known as the “Glitch Bill” - Chapter 2005-236, Florida Statutes. It impacts mediation in several ways:

• Removes the county obligation to fund mediation for indigents.
• Allows the courts to charge for scheduled mediation sessions - although not explicit, it implies that the courts can charge cancellation fees [this is a big deal for private mediators as well].

In addition, since many mediators are also qualified [the Florida Supreme Court does not certify] arbitrators, this would be of interest: F.S. 44.103(3) was amended to cap the arbitrator’s per diem fee to no more than $1,500.00, unless the parties agree otherwise.

The bill is lengthy, so just go to pages 73 -75 to find the changes to Chapter 44. The effective date is July 1, 2005 [less than 2 weeks from now].

If you’d like a copy of the completely revised Chapter 44, with the new amendments included, please email me.

To email me, click Perry S. Itkin.
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Child Abuse as a Defense?

It’s not what you’re thinking! In the case of S.J.C. v. State of Florida, 30 Fla. L. Weekly D 1257 [Fla. 2nd DCA 2005], the Second District Court of Appeal presents an unusual case, discussing child abuse as a defense by a minor child to the criminal charge of battery [on his mother] – it shows how a parent, intending to use corporal punishment on a child, may cause a child to reasonably expect to be injured sufficient to invoke that child’s right to use self-defense. Hmmm, something to think about when mediators hear someone raise “child abuse” during mediation.

By the way, the Mediation Training Center is a collaborating organization in this year’s Dispute Resolution Center Annual Conference, August 25 – 27, 2005 in Orlando, Florida. Here’s the Conference Brochure and here’s the Registration Form. Looks like a winner!

To email me, click Perry S. Itkin.
Visit the Mediation Training Center.

Timing is Everything!

Here’s something new for you: “post verdict-prejudgment mediation”. According to this story in the Daily Business Review, one of Florida’s alleged most infamous organized crime figures won a $13 million dollar civil racketeering verdict [is turnabout really fair play?]. The defense had made a motion for directed verdict on which the judge reserved ruling. The judge then “invited” a defense motion to set aside the jury verdict [that’s a clue] and ordered the parties to attend [you’re so smart, you guessed it!] mediation. Is this sort of like arb-med only called “trial-med”, or something like that?

To email me, click Perry S. Itkin.
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“So, How Do I Get Business?”

According to this helpful article in Business Week, the lesson is to network and think outside the box! We ask mediants to do that [think outside the box, that is], why shouldn’t we network like that too?

To email me, click Perry S. Itkin.
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Neatness Counts!

Imagine a statute that requires you to be neat in writing a mediation agreement – is this for real? Well, it is and you can find such a statute in Chapter 2005-141 of the Florida Statutes [SB 1312] on page 13, lines 1 – 29, relating to Recreational Vehicles. Actually, the statute gives mediators excellent guidance in reminding us that “the devil is in the details” in drafting an agreement and in setting forth times for performance – good lessons to be learned by reading this section. The statute, by the way, was effective June 3, 2005.

To email me, click Perry S. Itkin.
Visit the Mediation Training Center.

“Transsexual Ex-Husband” and “Ex-Wife” Create Their Own Law!

Margo became Michael after a sex change operation in 1987. Michael “married” Linda in 1989. They had 2 children – well not exactly – Michael adopted Linda’s son from a prior relationship and Linda gave birth, in 1992, to a daughter following artificial insemination with sperm from Michael’s brother.

They “divorced” ten years later and Michael [who was Margo] was awarded custody of both children. Linda appealed and in Kantaras v. Kantaras, 884 So.2d 155 [Fla. 2nd DCA 2004], the appellate court in a case of first impression in Florida held that there was no valid marriage and remanded the case to the trial court to declare the marriage void ab initio. What about the children? The appellate court said the legal status of the children was an issue for the trial court to examine.

The parties decided to go to [you guessed it] mediation! The parties agreed to a shared parental responsibility arrangement. Linda makes the educational decisions for the 13 and 15 year old children and Michael makes the extracurricular activities decisions.

According to this article in the HeraldTribune, the trial court judge approved the mediated settlement agreement. Did Michael and Margo create their own legal rights and law? What if a dispute arises between them under the agreement, is the agreement enforceable? What do you think?

To email me, click Perry S. Itkin.
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“Great Expectations” - Dispute Resolution Center’s 14th Annual Conference

The Dispute Resolution Center’s 14th Annual Conference for Mediators and Arbitrators, Great Expectations, will be held August 25 - 27, 2005, at the Rosen Centre in Orlando, Florida. Here’s the Annual Conference Brochure and the Registration Form. Pay particular attention to page 6 of the Brochure, Workshop A5!

This is an excellent conference – reserve the dates, reserve your room, enjoy the conference and continue to learn!

To email me, click Perry S. Itkin.
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Florida Supreme Court Amends Family Law Rules of Procedure

The Florida Supreme Court in its opinion In Re: Amendments to the Florida Family Law Rules of Procedure, 30 Fla. L. Weekly S 408 [Fla. 2005] amended, among other rules, those pertaining to Family Mediation. The amendments are effective June 2, 2005.

Rule 12.740, Family Mediation, was amended to reference section 44.108, Florida Statutes, which was amended in 2004 to provide a fee schedule for court-ordered mediation services.

Rule 12.741, Mediation Rules, was amended to recognize the family court's authority under section 44.406, Florida Statutes, to order sanctions for violations of mediation confidentiality provisions. This amendment recognizes the 2004 Legislature's creation of the Mediation Confidentiality and Privilege Act, sections 44.401 - 44.406, Florida Statutes (2004). The rule was further amended to provide that any violation of a confidentiality provision under section 44.405, Florida Statutes, must be knowing and willful for the court to impose sanctions under this rule.

The pertinent pages of the opinion reflecting the above rule changes are pages 36 – 39.

To email me, click Perry S. Itkin.
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Good Luck, Mr. President!

According to this article in Turkish Weekly, President George W. Bush may become a mediator between Turkey and Armenia. Good Luck, Mr. President! [I have to be neutral here and not give my professional or personal opinion – Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Professional Advice Or Opinion.]

What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.630, Professional Competence which states:

A mediator shall acquire and maintain professional competence in mediation. A mediator shall regularly participate in educational activities promoting professional growth.

Okay, okay – if not that, then what about the following:

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.640. Skill and Experience.

A mediator shall decline an appointment, withdraw, or request appropriate assistance when the facts and circumstances of the case are beyond the mediator’s skill or experience.

So, what do you think?!? Would mediation training be helpful?!? How about co-mediation?!? Any volunteers?

To email me, click Perry S. Itkin.
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Some Help for Mediating with Pro Se Parties

The Rock County [Wisconsin] Mediation and Family Court Services unit has a nice website with good materials for mediating with pro se parties. Their forms and other information provide ideas that are adaptable to your individual family mediation practice. It’s worth spending some time there [at the website, that is].

No blogging last Thursday [setting up for our CME Seminar] or Friday [the day of the CME Seminar]. The Seminar was terrific and enthusiastically received! Thank you to all who attended!

To email me, click Perry S. Itkin.
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The Value of An Apology

Sometimes “it’s not about the money” or so the saying goes. Is there any validity to that phrase, though, and does an apology have value in mediation? Well, not just in mediation – that’s our focus, however. A good example of the value of an apology is reported in this story in the Arizona Daily Star.

What’s curious is even though the City Attorney and Risk Manager said they couldn’t discuss the case because of the pending lawsuit, how is it that they were seemingly comfortable reporting to the press the statements and negotiations made during mediation? Plaintiff’s counsel had the same comfort level. What about confidentiality folks? Whose privilege is it anyway?

To email me, click Perry S. Itkin.
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