Mediators Are “Violence Interrupters”

According to this article from the BBC News [International Version], a Chicago organization named “CeaseFire” has been created to mediate gang conflicts. The mediators are former gang members who are referred to as “Violence Interrupters” – an interesting moniker.

All to say, my best wishes to you and your families for a Happy, Healthy, Prosperous and, especially, Safe New Year! Thank you for making Florida Mediator a part of your reading this year. “See” you next year – keep smiling!

To email me, click Perry S. Itkin.

New Multijurisdictional [MJP] Practice Rules Impact Mediation

According to this article in The Florida Bar News, three new rules that deal with multijuristictional law practice in Florida become effective January 1, 2006. The article presents some common questions with answers including one that focuses on mediation. We should know about this. Take a look [it’s the third question from the end of the article].

To email me, click Perry S. Itkin.

“Marathon Mediation” – Potential For Coercion

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(b) Self-Determination, Coercion Prohibited provides “A mediator shall not coerce or improperly influence any party to make a decision or unwillingly participate in a mediation.”

Rule 10.420(b)(2) Conduct of Mediation, Adjournment or Termination provides “A mediator shall adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties. . . .”

Generally, a mediator should not conduct a mediation conference which in any way would appear to coerce any party [but, you knew that!] – this would include the duration of the mediation and whether or not party [or their counsel or another mediation participant] expresses concern about the length of the conference. For instance, would a prolonged mediation conference have the unintended consequence of depriving a party of effective or meaningful representation of counsel?

Take a look at Shultheis v. Gotlin, 2005 Fla. App. LEXIS 20148 [Fla. 5th DCA 2005] for an analogous situation where an appellate issue [it starts on page 6, middle paragraph, of the opinion] involved a jury required to work a “marathon 16-hour workday” and the totality of the circumstances test. What mediation lessons can we learn from this opinion?

To email me, click Perry S. Itkin.

What Does Pastrami Have To Do With Mediation?

Marathon mediations – you may have participated in one or more, right?!? So, is your approach starve them until they settle – of course not! In providing the venue and environment for mediation you will attend to the dining [okay, maybe not high end cuisine] needs of the mediation participants. How about a 29 hour mediation? What would you serve or order in? According to this article in the New York Post, the recent transit strike in New York was settled over pastrami sandwiches! Pickles or chips anyone? The article presents some interesting insights into the negotiation techniques used by the mediators.

To email me, click Perry S. Itkin.

More Holiday Fun!

The week between Christmas Day and New Year’s Day is usually kind of quiet. So, in order not to lose any mental acuity, put on your thinking cap and enter [for free] the “Fun ADR Contest” at Dina Beach Lynch’s Mediation Mensch blog. The deadline is December 31st. Good Luck!

Thank you, too, to Dina for her very nice compliments about Florida Mediator!

To email me, click Perry S. Itkin.

Family Mediation – A New Meaning!

According to this article in the New York Daily News, the new acting boss of the Gambino crime family, John “Jackie Nose” D’Amico, is a mediator. How about that?!? Diplomacy skills are more valuable than muscle – new roles for new times.

To email me, click Perry S. Itkin.

A Holiday Present For You - If You Can’t Type [Or If You Can]!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420 Conduct of Mediation provides:

(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.

Even though the Committee Notes enlighten us that mediators are “. . . not required to write the agreement themselves”, a mediator may act as a scribe and type the agreement as it is dictated to them by counsel or they will type the terms of the agreement as they develop point by point during the mediation. Can you do two things at the same time, i.e. listen and type [without looking at the keyboard]? Have you attempted this and found Jabberwocky on the screen?

Well, for fun, you might want to print the following paragraph and ask someone to read it out loud to you.

“Aoccdrnig to rscheearch at Cmabrigde Uinervtisy, it deosn't mttaer in waht oredr the ltteers in a wrod are, the olny iprmoatnt tihng is taht the frist and lsat ltteer be at the rghit pclae. The rset can be a toatl mses and you can sitll raed it wouthit a porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe.”

Even though the letters are jumbled in the paragraph, most people have no trouble reading it! Credits to Robert K. Goral for the paragraph.

Now, wasn’t that fun? Okay, how about interesting? Aren’t we just simply amazing?!?

Enjoy the Holidays and your families; stay safe!

To email me, click Perry S. Itkin.

Florida Hurricane Mediation Program Is A Model

As noted in this prior posting, Florida has developed a mediation protocol to address hurricane damage disputes that arise between insureds and their insurance carriers. It works! According to this article in the Insurance Journal, Mississippi’s Insurance Commissioner has unveiled a Hurricane Katrina mediation program patterned after Florida’s program. More details about the program, which is administered by the American Arbitration Association, are reported in this article in The Sun Herald. In addition to mail, telephone or fax registration, Internet registration for this program is expected to be available. How about that!?!

To email me, click Perry S. Itkin.

Court Is Not Always The Best Way – Mediation Is Better!

According to this article from ABC Action News, a Circuit Court Judge said the judicial system is not always the best way to resolve complex disputes and that mediation is the only way to find a middle ground between a university professor and Florida State University in a dispute over the focus of a new chemistry building. What’s this all about?

To email me, click Perry S. Itkin.

What’s Up With Parenting Coordination?

The Florida Chapter of the Association of Family & Conciliation Courts Task Force on Parenting Coordination has issued its final report on the development of parenting coordination legislation. It recommended that the parenting coordination legislation not be submitted for consideration to the Florida Legislature for action during this 2006 session since there still remains vast differences in approaches to the use of parenting coordinators, which differences are not resolvable at this time and that it was highly unlikely that the legislative process would result in a statute that would have wide support among the stakeholders interested in its outcome.

Click here for more information on the Task Force background.

To email me, click Perry S. Itkin.

Mark Your Calendar!

In an earlier post I reported that the Florida Supreme Court ADR Rules and Policy Committee had filed its Petition to amend Florida’s Rules for Certified and Court-Appointed Mediators requesting revisions to the qualifications for mediator certification and other matters. The Petition was filed May 11, 2005. Just yesterday, Oral Argument on the Petition was scheduled for Wednesday, February 8, 2006. All to say, mark your calendars! If you’d like to watch the proceedings on-line, you can do so by clicking here [not before February 8, 2006 – but you knew that, right?!?].

Enjoy the weekend!

To email me, click Perry S. Itkin.

Florida Supreme Court Adopts Amendments to Small Claims Rules Referencing Mediation!

The Florida Supreme Court adopted Amendments to the Florida Small Claims Rules in its opinion SC05-146, released today with an effective date of January 1, 2006.

The Court adopted new Form 7.321, Notice to Appear for Pretrial Conference/Mediation, as proposed by the ADR Rules and Policy Committee, and agreed to by the Small Claims Rules Committee. This Form provides “[t]he case will not be tried at the Pretrial Conference, but may be mediated at that time. Do not bring witnesses. You must appear in person or by attorney. Whoever appears for a party must have full authority to settle for all amounts from zero to the amount of the claim without further consultation. Failure to comply may result in the imposition of sanctions, including costs, attorney fees, entry of judgment, or dismissal.” The Notice to Appear also contains an explanation of mediation and confidentiality of mediation communications.

The Court also adopted Form 7.350, Corporate Authorization To Allow Employee To Represent Corporation At Any Stage Of Lawsuit, and this includes mediation.

To email me, click Perry S. Itkin.

Have You Ever Been Threatened During Mediation?

F. S. 838.021, Corruption by Threat Against Public Servant, makes it a felony to harm or to threaten harm with the intent or purpose to influence a public servant to do, or not do, an act within the discretion of the public servant, or in violation, or performance, of a public duty. While providing mediation services in a court-ordered mediation are you considered to be a “public servant”? Unless you are covered under the specific provisions of F.S. 838.014(6), Definitions, you won’t like the answer provided in F.S. 838.014(6)(c), Definitions.

So, do you think the statute should be changed?

To email me, click Perry S. Itkin.

MEAC Opinions 2005-002 and 2005-003 – Now Online!

MEAC Opinion 2005-002: A position as a judicial assistant does not automatically prohibit you from mediating, but you are still obligated not to mediate a matter that “presents a clear or undisclosed conflict of interest,” Rule 10.340(a). You are required to make this determination on a case by case basis.

MEAC Opinion 2005-003: The Mediator Ethics Advisory Committee lacks the jurisdiction to determine whether a mediation should be treated as a negotiation for purposes of sections 447.605(2) and 286.011(3), Florida Statutes. However, if a mediation falls within the scope of the Mediation and Confidentiality and Privilege Act, then all mediation participants are obligated to adhere to its provisions.

To email me, click Perry S. Itkin.

“I’m A Certified Mediator. Am I Ethically Obligated to Report Another Certified Mediator’s Ethical Violations?”

According to the Mediator Ethics Advisory Committee’s most recently published opinion, the answer is “[t]here is no ethical obligation under the Florida Rules for Certified and Court-Appointed Mediators for a mediator to report allegations of ethical violations by another mediator.” You will want to read MEAC Opinion 2005-004. It also opines that “[i]t is inappropriate for a mediator to represent either one party or both parties in any dissolution proceeding or in any matter arising out of the subject mediation.”

To email me, click Perry S. Itkin.

Cross-cultural Misunderstandings & Negotiation

Carefully preparing for mediation is always important and is especially significant when one or more of the parties is from a culture other than your domestic culture. This article, International Negotiation: How Do I Get Ready?, by Lothar Katz, founder of Leadership Crossroads, will help you prepare for an international negotiation. It’s worthwhile reading!

To email me, click Perry S. Itkin.

“If You Don’t Sign This Post-Nuptial Agreement, I’ll Divorce You!”

Or, to put it another way, “if you really love me, you’ll sign!”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420[b][4] Conduct of Mediation, Adjournment or Termination, provides, in part, that a mediator shall “terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability. . . .”

In Zoldan v. Zohlman, 2005 Fla. App. LEXIS 18798 [Fla. 3rd DCA 2005], the Third District Court of Appeal reversed a final judgment declaring a post-nuptial agreement to be invalid because of undue influence. The court held that “mere affection and attachment or a desire to gratify the wishes of one who is esteemed or trusted may not alone be sufficient to amount to undue influence.”

Although this did not involve a mediation conference, the principle is illustrative of what a mediator should think about when considering termination under the above rule.

To email me, click Perry S. Itkin.

The Valueless Apology!

You may have heard it before – “I’m sorry.” In the context of the facts in In re Debra L. Koven, On Contempt, 2005 Cal. App. LEXIS 1818 [Cal. 2nd App. Dist., Div. 6 2005] the lawyer apologized “for the improper statements in the petitions, [and] expresses deep regret for impugning the [integrity of this] Court, and accepts the embarrassment she has brought upon herself. . . .” This did not prevent her from being held in contempt by the appellate court.

The lawyer’s approach to litigation focused on impugning the integrity of everyone in the legal system, whether judges, justices, attorneys, or expert witnesses, who obstructed the achievement of her goals. I wonder what this lawyer would have to say about mediators!

How did the court determine whether the apology was genuine? Well, you’ll have to read the interesting analysis. All to say, sometimes “I’m sorry” just doesn’t have value.

To email me, click Perry S. Itkin.

P.S. By the way, for most of last week I was presenting my 40 hour Family Mediation Certification Training program and was unable to post to Florida Mediator.