Wednesday, August 31, 2005

Help Victims of Hurricane Katrina

The Network for Good has a useful listing of organizations and a brief description of the relief efforts they provide in helping the victims of Hurricane Katrina. Please visit the website.

To email me, click Perry S. Itkin.

“But I Thought . . . .”

This article from the Harvard Business School’s Working Knowledge newsletter is an excellent presentation on comparing critical [translated means logical] thinking with emotional thinking. Although written in a business management context, the decision-making concepts are equally applicable in mediation. So, are you a critical thinker, an emotional thinker, or [in the spirit of mediation] both?

To email me, click Perry S. Itkin.

Tuesday, August 30, 2005

The Tragedy of Katrina

Only prayers today – for the victims of Hurricane Katrina and for the rescue and response workers as they maneuver through the destruction. Frankly, I’m without words – the devastation is overwhelming and unfathomable. The Red Cross and The Salvation Army are just two of the aid organizations you might think about if you want to help.

To email me, click Perry S. Itkin.

Monday, August 29, 2005

Mediating an Embezzlement!

Well, not exactly. To put the title of this post in another way, it could read “How ‘I have a great case’ became so complicated that the solution lies in mediation” [except that’s too long for a title]. Here’s a very interesting article in the Skagit Valley Herald [State of Washington] in which the prosecutor and defense counsel in a criminal proceeding have turned to mediation in an effort to resolve the issues because of the twists and turns the case has taken in court.

To email me, click Perry S. Itkin.

Wednesday, August 24, 2005

“Say What?”

As mediators we know how important listening is as an essential skill and, yes, you’ve heard this a thousand times [me too]. It’s too important to forget, must be done without distraction to be significant and is critical for relating to people exceedingly well [we want that, right?!? Say yes!]. Here’s an interesting article which appeared in Fast Company magazine with a good exercise to help us remember to communicate with caring, empathy and respect. After all, that’s a big part of what we do!

I’ll be attending Florida’s annual Dispute Resolution Center conference in Orlando and won’t be posting again until Monday. Oh, by the way, we’re supposed to have Hurricane Katrina in a day or so in Fort Lauderdale [please don’t let that happen] which is why I won’t be blogging also.

To email me anyway, click Perry S. Itkin.

Monday, August 22, 2005

We Do Make A Difference!

Here’s a nice story from the Palatka Daily News about the volunteer mediation program in Putnam County, Florida where, by the way, they have a need for County Court Mediators – if you’re not mediating as much as you would like to and you’d like to keep your skills sharp, why not give them a call?!? Judy Carroll is the director of the mediation program in Putnam, St. Johns, Flagler and Volusia Counties – telephone 386.239.6504.

To email me, click Perry S. Itkin.

Tuesday, August 16, 2005

The August, 2005 “Resolution Report” Is Now Available

The Dispute Resolution Center’s August, 2005 issue of The Resolution Report is now available. It contains an update of the activities of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy [a hardworking group of dedicated and talented individuals], current Mediator Ethics Advisory Committee Opinions [a must read section], an update from the Mediator Qualifications Board [we can learn from the grievance case summary], the latest Message from the Director [Sharon Press - but you knew that] and, of course, my Case and Comment article starting on page 16 [I hope you like it and find it informative].

Please don’t forget to attend the annual DRC Conference August 25 – 27, 2005 [that’s next week], Great Expectations, in Orlando. Here’s the conference brochure and a registration form. If you attend, please find me to say hello at my Friday workshop [A5], 10:30am to noon or at the Mediation Training Center table!

I begin my latest 40 hour Circuit Civil Mediation Certification Training Program tomorrow which ends on Sunday. So, no blogging during the next 5 days and I’ll be back on Monday.

Have a good rest of the week, an enjoyable weekend, and “see you” Monday!

To email me, click Perry S. Itkin.

Monday, August 15, 2005

What’s Wrong With This Picture?

Okay, it’s not exactly a picture but there is something wrong. According to this article in Jacksonville’s Daily News and Financial Record, it’s a good idea [and I agree] to read court orders referring parties to mediation and it references segments of the court order in that judicial circuit. So, what’s wrong here? Hint: F.S. 44.302 referenced in the court order no longer exists! It has been replaced by F.S. 44.102. All to say, if you do read the Mediation Orders you receive from the court you might want to check the rule and statutory references to see if they are the current ones. Actually, there’s another reason to check those references and that is to keep up to date since, as you know, mediators have an ethical obligation to do so under Florida’s Rules for Certified and Court-Appointed Mediators:

Rule 10.520. Compliance with Authority.

A mediator shall comply with all statutes, court rules, local court rules, and administrative orders relevant to the practice of mediation.

To email me, click Perry S. Itkin.

Friday, August 12, 2005

Should Oscar the Grouch Mediate This One?

Maybe he has subject matter expertise! According to this article in the Navhind Times, the absentee mediator in this dispute is “the government” – specifically, where should the capital city garbage be dumped [i.e., where should the landfill be located] – not surprisingly the attitude is, you know, not in my backyard. So, how about mediation? In Florida we actually have a statute which is designed to resolve intergovernmental disputes, Chapter 164, Florida Statutes. The process is interesting. Take a look at the prerequisites for the mediation conference and also the duty to negotiate and the obligation to participate in the process in “good faith” [How, and by whom, is that measured?] as well as the consequences for not doing so [F.S. 164.1055 and F.S. 164.1058, for example].

I know, it’s a lot to read but the statute adds twists [some good and some, well, not so good] to the process!

Have a nice weekend!

To mail me, click Perry S. Itkin.

Thursday, August 11, 2005

Reservation of Jurisdiction to Award Attorneys Fees – Ooops!

In May v. May, 2005 Fla. App. LEXIS 12430 [Fla. 2nd DCA 2005] the Former Wife prevailed on her Motion to Enforce Mediation Agreement in which she requested an award of attorney’s fees. The court, at the request of counsel for both parties, agreed to determine the issue of attorney's fees at a post-hearing time – however, the court inadvertently did not do so in its order. The Second District Court of Appeal reversed and remanded for the court to enter a corrected order reserving jurisdiction to consider the Former Wife’s request for attorney's fees.

To email me, click Perry S. Itkin.

Wednesday, August 10, 2005

Mediating With Mother Nature

Well, not exactly. How about mediating the tsunami? Ok, ok – how about training to mediate tsunami related disputes. According to this article in the Daily News [not the one from New York], the Legal Aid Commission of Sri Lanka in collaboration with the Alternative Disputes Resolution Institute commenced a Mediator Trainer Training Program. The model is based on Christopher Moore’s model. Moore wrote The Mediation Process: Practical Strategies for Resolving Conflict.

The article is interesting not only from the practical perspective but also as a look into how another country views mediation. By the way, did you know that Sri Lanka is the second most litigious society in the world?

To email me, click Perry S. Itkin.

Monday, August 08, 2005

Success In Mediation Is Not Just About Settlement!

This is not heresy. It’s actually enlightened thinking by an appellate court in England according to this article in The Lawyer. Take a look – it’s interesting! Are judges here on par with this line of thought?

There’s another aspect to this also as set forth in Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.200, Scope and Purpose which states in part:

Whether the parties involved in a mediation choose to resolve their dispute is secondary in importance to whether the mediator conducts the mediation in accordance with these ethical standards.

See, we’re not alone in our thinking – the English court takes another step forward!

To email me, click Perry S. Itkin.

Friday, August 05, 2005

When Is An Agreement Not An Agreement?

In Dorsett v. Dorsett, 902 So. 2d 947 [Fla. 4th DCA 2005] the parties attended court-ordered mediation. The Mediation Conference Report stated that the parties were still negotiating and may return to mediation [they didn’t]. Months later the former husband filed a Motion to Enforce Settlement Agreement, claiming that at the office of the Wife's attorney, the parties and their attorneys settled, resolved and agreed upon all issues in the case and the former Wife won’t abide by it. The former Husband admitted there was no signed agreement and claimed there was an oral agreement which the trial judge adopted. Some of the terms of this adopted oral “agreement” related to the parties’ minor child. The Fourth District Court of Appeal held that “a trial court’s responsibility to the child cannot be abdicated to any parent, any expert” and that “a court is not bound by any agreement between the parents”.

So, although the parties may create a mediation agreement on some or all parenting issues, the court must still approve it – the parties should be aware of this, don’t you think?

To email me, click Perry S. Itkin.

Thursday, August 04, 2005

“What’s the Meaning of . . . ?”

One of principles in the communication module of mediation training is learning to avoid jargon. That’s also a good idea in practice. This article in the New York Law Journal is an excellent example why. A trial judge in New York threw out [how’s that for “jargon-less” writing] a jury verdict after it was disclosed that the jury consulted a dictionary to determine the meaning of “preponderance”. Imagine that!

To email me, click Perry S. Itkin.

Wednesday, August 03, 2005

Hillary Clinton – Mediator!

According to this editorial in Newsday, Hillary Clinton is characterized as a mediator between the Democratic Party’s “left” and the Democratic Leadership Council. Hmm!! As mediators, we’re trained to probe for, uncover and discuss a party’s hidden agenda. How about some mediator introspection, though? Does a mediator have a hidden agenda? How about Hillary [maybe it’s not so hidden]?!? Good luck, Senator Clinton!

To email me, click Perry S. Itkin.

Tuesday, August 02, 2005

A Postscript to Yesterday’s Post

By the way, Florida’s Rules of Civil Procedure, Rule 1.730(b) [Completion of Mediation; Agreement] and Florida’s Family Law Rules of Procedure, Rule 12.740(f)(1) [Family Mediation; Report on Agreement] provide that the agreement reached in mediation is required to be signed by the parties and their counsel, if any.

The Rules of Civil Procedure identify 3 ways to memorialize an agreement:
  • Reduce it to writing
  • Electronically recorded [transcript filed with the court]
  • Stenographically recorded [transcript filed with the court]
The Florida Family Law Rules of Procedure likewise identify 3 ways to memorialize an agreement:
  • Reduce it to writing
  • Electronically recorded [made under oath or affirmed; transcript filed with the court]
  • Stenographically recorded [made under oath or affirmed; transcript filed with the court]
So, how is it possible that mediation notes, even coupled with testimony, could conceivably rise to the level of an enforceable mediation agreement? Do the Rules mean what they say – or not? Maybe my mantra, Nothing is as it seems nor is it otherwise, actually is a truism. The requirements of the Rules were not mentioned in the opinion. Hmmm!!

What do you think?

To email me, click Perry S. Itkin.

Monday, August 01, 2005

Warning: Mediation Notes Alone Do Not Constitute An Agreement, But . . . !

In Borck v. Borck, 2005 Fla. App. LEXIS 11049 [Fla. 4th DCA 2005] involving competing petitions for the appointment of a guardian, the trial court ordered the intended ward’s family members and other entities to produce financial information and tax returns. The order was based solely on handwritten mediation notes [it’s not clear from the opinion whose notes they were]. The order was entered without an evidentiary hearing as to the scope of the “agreement” and was based on the notes and one attorney’s representation of the “agreement”. The Fourth District Court of Appeal quashed the trial judge’s order without prejudice to the court holding an evidentiary hearing.

The subtle [well, maybe not so subtle] implication here, however, is that mediation notes coupled with appropriate testimony may rise to the level of an enforceable agreement. Any thoughts on how this might affect your note-taking?

So, what do you do with your mediator notes? Okay, what do you do with, or say about, the notes of the mediation participants, if anything? Good luck, by the way, in trying to collect the notes of the mediation participants! I am not, repeat not, suggesting you place yourself in harm’s way. By the way, there is no mention in the opinion about confidentiality [this is a hint].

To email me, click Perry S. Itkin.