Enforcing Settlement Agreement v. Attorney-Client Privilege

According to this article in the New York Law Journal, a Federal Court judge in the Southern District of New York has ruled in G-I Holdings, Inc. v. Baron & Budd, et al., 2005 U.S. Dist. LEXIS 14128 [S.D.N.Y. July 13, 2005] that a party may not pierce the attorney-client privilege to discover what advice the attorneys gave to the clients about complying with a settlement agreement which provided, “Plaintiff’s Counsel . . . agrees, unless in the exercise of its independent professional judgment it determines otherwise, to recommend that its clients seriously consider [the] alternative dispute resolution procedure [described in paragraph 7. . .]”. Is this enforceable? How?

The judge ruled that “The problem of how to enforce [the above paragraph] was foreseeable, and [the] failure to insist on contractual terms that specified an enforcement mechanism does not justify the invasion into the privilege that [the party] now seeks.”

What would you do to stimulate the parties’ thinking during mediation as to how a breach of such a provision could be managed?

Have a pleasant weekend!

To email me, click Perry S. Itkin.

“This Is An Easy Case For You To Mediate!”

I don’t know what you think when one of the parties or attorneys makes on opening comment like that. To me, it’s like the “kiss of death” – easy is in the eye of the beholder, so to speak. Anyway, when, after much laboring, the parties reach an agreement verbally, more real mediating lies ahead – preparing the written agreement. As an aside, don’t let one of the parties lull you into a false sense of security by asking, before the agreement is written, “How much do we owe you?”. The sagacious answer is, “I’ll tell you after the agreement is prepared and signed.” But, you already knew that, right?!?

Take a look at this article in the Corvallis Gazette-Times which illustrates the point. There, one side presented a short form template agreement and the other side presented a seven page settlement document. Hmmmm!!!!!
How close do you think they are?

To email me, click Perry S. Itkin.

Divorce Mediator Indicted!

I bet that got your attention! Theft + fraud + unauthorized practice of law + using mediation service to pick up dates = indictment. Wait, wait, wait, calm your curiosity down – it was not a Florida mediator! According to this article in Phoenix New Times, a disbarred Vermont attorney opened a mediation business in Arizona, titled “Divorce With Dignity” or “Divorce Associates”. His ads said he would “settle all issues – no trial – no court appearance – be divorced in 90 days – low cost – low stress – judge approved – focus on best interests of children – attorney supervised.” See any problems here? Really, the article is worth reading, as is this one for more information. This gives criminal mediation new meaning.

To email me, click Perry S. Itkin.

Pick Up the Phone!

Florida Rules of Civil Procedure, Rule 1.720(b) provides for sanctions for failure to appear at a duly noticed mediation conference.

(b) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys' fees and other costs, against the party failing to appear. [Emphasis added.]

Has this ever happened to you? One side shows up at mediation and the other doesn’t – no prior warning. Lots of folks are not happy, to say the least. However, before the appearing party rushes to file sanctions, it’s at least worth making a phone call to the non-appearing attorney as was suggested by the Fourth District Court of Appeal in Giron v. Fairways of Sunrise Homeowners’ Association, Inc., 30 Fla. L. Weekly D 1426 [Fla. 4th DCA 2005]. Although it’s not a case involving mediation, the principle of professionalism is always applicable.

A good practice for the mediator would be to call the parties a day or more prior to the scheduled mediation to confirm everyone’s attendance [and, of course, to remind the parties to bring a check] – but, you knew that!! Right?!?

To email me, click Perry S. Itkin.

“I See What You’re Saying!”

What does that phrase tell you – the responder is a visual communicator. That’s one choice what’s another? How about this – the speaker is also a visual communicator. Why? They gesture while verbalizing as depicted in this video promo from Linkage, Inc. appropriately titled Gestures.
It’s fun – take a look!

To email me, click Perry S. Itkin.

Building Rapport = 1st Impressions

One of mediation training’s learning objectives is for class members to understand the importance of a mediator demonstrating empathy, building rapport and establishing trust with mediation participants. That’s a detailed way of illustrating the importance of 1st impressions! In this article from Linkage, Inc. you’ll find some useful tips on making a fantastic 1st impression.

Try some or all of them in your next mediation and keep me posted on your triumphs!

By the way, no posts on Thursday or Friday since I will be out of town. So, let me be the first to wish you a very pleasant weekend. Until Monday!

To email me, click Perry S. Itkin.

Mediation and Its Relationship to Attorney’s Fee Award

An agreement reached in a Workers’ Compensation mediation which clarified an ambiguity [in favor of the claimant] as to whether the carrier transferred the claimant’s care from his treating physician to another physician resulted in the First District Court of Appeal decision in Mylock v. Champion International, et al., 2005 Fla. App. LEXIS 11003 [Fla. 1st DCA 2005] that the claimant’s attorney was successful and entitled to an attorney’s fee award.

To email me, click Perry S. Itkin.

How Do You Build A “Tree”?

It’s not exactly a biological organism tree to which I’m referring and, by the way, of what value is this “tree” in mediation? Okay, it’s a “decision tree” which takes a complex problem, diagrams certain key points and possible outcomes [sound familiar], and captures the experience and judgments of the lawyers in analyzing different options for settlement and risks of litigation. Voilà – you have just built a tree! It’s a useful tool in valuing a case according to this article [the “decision tree” can be built manually or with the assistance of computer software] which is a good overview of a Litigation Risk Analysis™ tool.

To email me, click Perry S. Itkin.

Is This What Happens to Family Mediators Who Burn Out?!?

According to this movie review in the Guardian Unlimited, “Wedding Crashers” is being released today. It’s about two lawyers who practice matrimonial mediation and who, after witnessing the horrors of relationships which have “gone bad”, become phobic about commitments. These 2 Casanovas crash weddings and . . . . Couldn’t Hollywood have chosen a profession other than mediation? Is this the way to educate the publice about mediation? Anyway, prepare yourselves for comments from those who see this movie. It’s tough enough when pro se parties get their legal education from the “Common Law of Television” – what are they going to think [please, at least think!] about mediation?

Have a pleasant weekend!

To email me, click Perry S. Itkin.

What Kind of American English Do You Speak?

One of mediation’s general tenets is to reduce obstacles to communication. Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.220 Mediator’s Role and Rule 10.230 Mediation Concepts. It follows that not only do we need to understand, but we also must be understood. Frequently I’m asked by English speaking individuals interested in becoming mediators if their fluency in another language, Spanish for example, would be an asset. Of course, the answer is yes followed by what kind of Spanish do you speak – Spanish Spanish [okay, okay Castilian], Argentine Spanish, Cuban Spanish, Mexican Spanish, Puerto Rican Spanish, Venezuelan Spanish, etc. – you get the idea.

All to say [pun intended], have you ever wondered what kind of American English you speak? Here’s a short on-line 20 question quiz designed to answer the question. Try it, it’s fun! So, is your American English Linguistic Profile “Yankee”, “General American”, “Dixie”, “Midwestern” or “Upper Midwestern”? Any cultural diversity thoughts here?

To email me, click Perry S. Itkin.

Mediation Cancellations – Another Perspective!

An occupational hazard for mediators is the dreaded cancellation – loss of time and money. However, when a mediation is cancelled have you ever paused to think about the effect of that on the mediants [I made that term up!]? For some insight into the answer, read this article in The Advertiser. Mediation is not just about the professionals!

To email me, click Perry S. Itkin.

Documentaries in Mediation

What is negotiation? How about, negotiation is communication for the purpose of persuasion. Ok, ok – you knew that. How about this, “1,000 = W that a P is W”. What does this mean? Here’s a clue. Settlement documentaries are more than just marketing tools they speak volumes [have you figured out the equation yet?]. According to this article in the Tampa Bay Business Journal, settlement documentaries help get serious negotiation points across while simultaneously being discerningly entertaining. What’s in your microwave?!?

If you still need help with the equation, email me and I’ll give you the answer!

Perry

County Court Mediator Volunteers Needed!

According to this article in Hernando Today, the Fifth Judicial Circuit [Lake, Citrus, Marion, Sumter and Hernando Counties, Florida] is offering small claims mediation. Actually, it’s being launched in Hernando [effective July 1] and Sumter Counties [soon] after successes in existing mediation programs in the other 3 counties within the judicial circuit. The County Court needs volunteers, either already certified County Court Mediators or those individuals willing to be trained to become certified County Court Mediators. Contact information is contained in the article.

Anyone interested? Please say “yes”!

To email me, click Perry S. Itkin.

Conflict Resolution – A Video Game for Children + Something for Adults

The Federal Mediation and Conciliation Service has developed a video game for children that teaches them Conflict Resolution as part of an FMCS initiative to combat youth violence according to this report from ABC News. This is an excellent idea!

Now, something for the adults – the Equal Employment Opportunity Commission [EEOC] is offering a new video 10 Reasons to Mediate which introduces businesses to the EEOC’s National Mediation Program. It’s free and might be worthwhile taking a look at.

To email me, click Perry S. Itkin.

Who Should Not Participate in Mediation!

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. [Emphasis added.]

What if one of the mediation participants resists our diligent efforts to fulfill this often challenging task – such as the Michigan lawyer who was barred from the courthouse due to his conduct [imagine that!] as reported in this article in The Macomb Daily? What would you do?

To email me, click Perry S. Itkin.

How Much Does a Penny Weigh?

Actually, try weighing 100,000 pennies! In In Re: Marriage of Powell, Case No. 11-04-00142-CV [TX 11th Ct. of Appeals, 2005] the former husband was ordered to pay $1,000.00 in attorney’s fees to his former wife’s lawyer. He made the payment – you guessed it, in pennies! According to this article in The Texas Lawyer, he contended he was complying with the court order in his own small way [really small!]. The trial court found this conduct to be “frivolous and ridiculous”, although not contemptuous, and ordered the former husband to pay additional attorney's fees and expenses by cashier’s check, money order, or cash [in specified denominations].

Remember, the “devil is in the _____” and, believe it or not, when an agreement requires payment, unless it clearly specifies some other kind of money, the exact performance required is payment by legal tender [i.e., cash] and a check is not legal tender! So, did he comply?

All to say, in fulfilling our responsibility to discuss the implementation of a mediated settlement agreement [Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420(c) Closure], should we ask “what does payment mean, or, in what form will the payment be?” If the answer is “in pennies”, then . . . .

To email me, click Perry S. Itkin.

Sandra Day O’Connor – Mediator for the U.S. Supreme Court!

One of the big news stories, as reported in The New York Times, over this past July 4th Holiday Weekend was the announcement by U.S. Supreme Court Justice Sandra Day O’Connor that she is retiring. Referred to as the “Crucial Swing Vote”, Justice O’Connor has provided incredibly valuable and practical lessons for mediators in the distinctive way she thinks as presented in this 2001 New York Times Magazine article.

Also, according to this article in The Reporter, Justice O’Connor was viewed as the Court’s mediator.

What techniques, skills, and strategies can you adapt to, or apply in, your mediation practice after reading the 2001 article?

To email me, click Perry S. Itkin.

“Florida Mediator” – Now Searchable!

I’ve added a new searchable feature to Florida Mediator to make it even more useful for you. If you scroll down a little, on the right panel you’ll find a familiar looking Google search box. From here you can search Florida Mediator! How about that!

Please let me know how you like this addition!

To email me, click Perry S. Itkin.

“Is Everything We Say in Mediation Confidential?”

You know the answer and it is . . . . Here’s the latest case providing an exception to confidentiality of communications in a court-ordered mediation. In Quintana v. Jenne, Case No. 03-15443, [11th Cir. 2005], a case from the Southern District of Florida, the issue involved an award of attorney’s fees to a prevailing defendant and whether one of plaintiff’s claims was frivolous.

The defendant did not deny making an offer of settlement during the mediation but maintained that any settlement offer should not be considered because it was made during the court-ordered mediation. A critical factor for the appellate court in evaluating whether a settlement offer militates against a determination of frivolity was the amount of the offer.

Note that Local Rule 16.2 for the U.S. District Court for the Southern District of Florida provides for confidentiality of communications in mediation [PDF page 54 which is page 37 of the Rules]. The Form Order of Referral to Mediation and the Comments which follow the Local Rules provide interesting reading on confidentiality.

All to say, exceptions are just that – exceptions [clever, don’t you think!].

Have a very pleasant and safe 4th of July Holiday Weekend!

To email me, click Perry S. Itkin.