Mediation Without Borders

Here’s a splendid letter from Ken Cloke and Robert Creo to all Mediators!

“We are thrilled to announce the creation of Mediators Without Borders (MWOB). MWOB is a non-profit provider of pro bono conflict resolution capacity building within post-conflict communities.

A key goal of MWOB is to develop indigenous skills for group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.

The concept is for teams of volunteer mediators to conduct skill-building workshops consistent with the norms, values, and culture of the locale.

The Mission is to increase the capacity of hostile communities to prevent, resolve, and recover from violent conflict. An array of conflict alternatives can be explored by strategic integration into the political, economic, and social institutions. The same team would volunteer for between 1 – 3 weeks per year, over a number of years in the same country, to build sustainable initiatives and to develop local peacemakers and peacekeepers.

The current business model is to partner with existing NGO’s and ADR entities to provide experienced mediators as trainers and consultants to complement and expand the conflict resolution capacity of already funded peace projects.

Ken Cloke is the key founder and leader of Mediators Without Borders. He has assembled a dedicated team of mediators to implement this vision of MWOB.

The entity has been legally established and is being housed in Pittsburgh with office space and other support donated by Bob Creo, one of the incorporators of MWOB.

MWOB needs funds for staffing and administrative overhead to effectively implement the MWOB mission. There is an administrative plan to share the services of Ms. Anjali Soi, Executive Director of Mesites Foundation, also headquartered in Pittsburgh, with MWOB and hire a part-time administrative assistant.

The business plan provides for an annual administrative budget for cash flow purposes estimated at a modest $3,000 per month in the first year of operation. We expect to be filing for grants for the 2007 – 2008 grant cycle, but need to raise funds from the mediation community to implement an effective infrastructure. Ken and Bob, together with the Steering Committee of: Nan Walker Burnett, Lynn H. Cole, Sandi DiMola, Helen Dekovachich, Richard DeWitt, Erica Ariel Fox, Joan Goldsmith, C.J. Larkin, and Rachel Wohl, seek your participation as a Charter Mediator Member of MWOB.

This requires an annual dues commitment of at least $1 per day for an initial two year pledge period.

Only Member Mediators are permitted to volunteer to intervene abroad in specific projects. Over the next several months, we will be creating the web site, which will provide updated information as this project rapidly moves forward. We also seek networking assistance from the Mediator Members to identify potential partners, projects, and indigenous peacekeepers.

Please consider becoming a Mediator Member of a Supportor by completing the Dues Pledge Form on the web page link . . . and returning it with payment promptly.

Please feel free to contact any of the Steering Committee or Anjali Soi at anjalisoi@gmail.com or 412.441.1151 for additional information.

Please pass this letter and information onto any other interested mediators. I hope you can join us on this exciting and worthwhile endeavor.

Ken Cloke, kcloke@aol.com and Bob Creo, robertacreo@cs.com”

To email me, click Perry S. Itkin.

Nat Fein – Mediator!

Who?!? This 1949 Pulitzer Prize winning photograph of Babe Ruth [“Babe Bows Out” taken June 13, 1948] is a fabulous picture – why – because it was taken from the back instead of from the front like thousands of other pictures! The photographer, Nat Fein, thought outside the box – thought and saw differently than others – i.e. from different angles [well, he could have been a mediator – don’t you think?].

According to this article in The National Law Journal, civil actions ending in creative settlements that do more than put money into the pockets of plaintiffs and their lawyers are unusual BUT [and you know what that means] they are increasing – try charitable donations, tax breaks, defendants instituting safety programs, apologies – just to name a few imaginative ideas for settlements. Hey, how about that?!!? The power of self-determination – simply amazing!

It’s not always just about the money! Really – it’s not!

To email me, click Perry S. Itkin.

“Go Directly To Jail; Do Not Pass Go; Do Not Collect $200.00!”

What does The Monopoly Game have to do with mediation? Nothing actually, although the case of Higgins v. Higgins, 2006 Fla. App. LEXIS 20867 [Fla. 2nd DCA 2006] is illustrative of the relationship between being jailed by a trial judge who later orders the same party to mediation [on the very same day, no less]!

The former wife in this post divorce case was held in direct criminal contempt of court during a hearing, summarily sentenced to jail for 6 months, actually jailed and then returned to court later the same day when the same judge ordered her and her former husband to mediation in the office of the court mediation program. Any problems that you see so far?

Okay, how about prior to ordering the parties [who were pro se] to mediation the judge had announced to the former wife that her attempt to relocate with the parties’ minor child was barred by court order [which it wasn’t] and unlawful and that was one of the reasons for the contempt conviction? It’s not getting better, is it?!?

As a result of the mediation, the parties signed a document entitled “Order” as did the “Mediator[,] Preparer of Order of Court.” [Mediators as “Guardians of the Process” - o.k.; mediators as “Agents of Reality” - o.k.; but mediators as “Preparers of Order of Court” - not o.k.] This order transferred custody of the minor child from the mother to the father. You guessed it, the former wife/mother appealed the order of contempt and the order modifying custody.

How significant were the “highly coercive circumstances”, devised by the trial judge, to the appellate court which reversed the trial judge. The wheels of justice don’t move so quickly [what else is new?!?] – the hearing was held in January, 2006 and this appellate decision was issued in December, 2006.

To email me, click Perry S. Itkin.

“Good Luck” Mediation

Whaaat?!!?? Well, according to this article in the Livingston Daily Press and Argus, a trial judge is alleged to have prevented lawyers in a divorce case from selecting their own mediator because the judge “was not having good luck” with the named mediator. Hmmmm!!! There’s more too and you’ll have to read the article. If the allegations are true, isn’t this outrageous?!? What about party self-determination for starters? Anyway, you be the judge [or not]!

To email me, click Perry S. Itkin.

“Come On Down!”

Okay – this isn’t The Price is Right although the price really is right as you will see; plus you don’t have to be from Florida to participate. Of course, if you are from Florida you already know you can submit workshop proposals – and please do.

The Dispute Resolution Center is now accepting workshop proposals for its 16th Annual Conference for Mediators and Arbitrators, August 23 - 25, 2007 in Orlando, Florida.

The goal of the Conference is to provide educational opportunities that will be of interest and benefit to professionals involved in the field of conflict resolution. Workshop proposals should be designed to enhance knowledge and skill levels for the seasoned practitioner.

Presenters selected for participation will be given a reduced Conference registration fee of $50.

Complete the Call for Proposals application and mail, email or fax it to the Dispute Resolution Center postmarked on or before February 1, 2007 [it’s not that far away]. A separate application must be submitted for each workshop. If you have questions, email Kimberly Kosch at koschk@flcourts.org.

A change from prior conferences is a revision in all individual workshops which will be 2.0 CME credits (as compared to 1.8 hours previously). This change will allow mediators to complete their 2 hour CME requirements in one workshop rather than having to take one plus workshops to get their 2.0 hours.

As in the past, the conference will be held at the Rosen Centre Hotel, 9840 International Drive, Orlando, Florida 32819 and the DRC Lodging Rate is $99.00. Here’s the number to call to make a reservation 1-800-204-7234.

To email me, click Perry S. Itkin.

We're Still Waiting!

Here’s an update on my prior post on the status of the requirements to become a Circuit Court Mediator certified by the Florida Supreme Court.

The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy has submitted to the Florida Supreme Court proposed amendments to the Florida Rules for Certified and Court Appointed Mediators. The committee proposes new rule 10.105, Point System Categories, and amendments to rule 10.100, Certification Requirements, that incorporate the recently adopted basic point requirements for certification as county, family, circuit, and dependency mediators. Essentially, the point system was removed from the Court’s Administrative Order and incorporated into the Rules.

Consistent with the Court’s prior opinion, the proposed amendments to rule 10.100(d), Circuit Court Mediators, include the requirement of Florida Bar membership that was retained by the Court until it could consider requested input from The Florida Bar on the requirement. The committee continues to urge the removal of the Florida Bar membership requirement. The Bar takes the position that the requirement of Florida Bar membership should be retained for circuit court mediators, but that the applicant also should be required to have been a member of The Florida Bar or other bar jurisdiction, in good standing, for the five years immediately preceding an application.

The Court invites all interested persons to comment on the committee's proposed amendments.

Please submit your comments.

To email me, click Perry S. Itkin.

Mediating Colors – Black and White

Okay, not exactly – however, that seems to be the challenge in yet another governmental dispute. This one is between the Clerk of Court and the Escambia County Commission [wait a minute, doesn’t this sound familiar?] according to this article in the Pensacola News Journal. The chief deputy clerk pondered, “I don’t know how you can mediate a black-and-white issue.” And now, here comes the magic of mediation! “Music, maestro, please!”

To email me, click Perry S. Itkin.

“Fishbowl Mediation”

Whoa! Wait a minute! According to this article in the Naples Daily News a long running power struggle between the Clerk of Court in Collier County, Florida and the Collier County Commissioners might be mediated [so far, so good]. The attorneys for Collier County have asked the Clerk of Courts to mediate in an effort to settle several lawsuits between the two government entities. [A good move!]

The Clerk agreed [another good move] but [and you know what that means] would do so on two conditions [here they come!]: [1] He wants the mediation sessions to be open to the public and [2] he wants all five county commissioners to take part in the mediation [Hmmm! What about the Government in the Sunshine Law?!?]. I know, that’s why condition number 1 is in play. However, Florida also has a Government in the Shade Law too [really; I’m not kidding here].

Florida requires governmental entities to conduct their business at meetings open to the public, i.e. “in the sunshine”. F. S. 286.011. However, the legislature created an exception to the sunshine law which permitted any governmental agency, its chief executive and attorney to meet in private [“Government in the Shade”] to discuss settlement negotiations or strategy. Take a look at F.S. 286.011(8) to see how confidentiality in mediation can be synchronized with Government in the Sunshine and the procedures to be followed.

After reading the article, what kind of protocols could be developed to address the concerns expressed by both sides [it can be done, you know]?

By the way, is what the Clerk of Courts suggesting really mediation or is it some other ADR process?

To email me, click Perry S. Itkin.

The Other Side Of The Coin

Here’s an article in The Oregonian about police officers in Hillsboro, Oregon training as mediators and here’s another article about types of disputes that police officers might mediate.

What’s in your wallet? Only kidding; I thought these were nice accompaniments to the earlier post about mediating complaints against police officers. Hmmm – maybe police officers trained as mediators will reduce the number of complaints filed against them by civilians [an unintended consequence – or not]!

To email me, click Perry S. Itkin.

“I Can’t Get No Satisfaction!”

With the exception of the title of their 1965 hit song, The Rolling Stones have nothing to do with this.

What if a civilian could get satisfaction in resolving a complaint against a law enforcement officer? In the early 1990’s, at a time when New York City was rife with police scandals, the Civilian Complaint Review Board was created so that accusations against police officers could be handled by an independent agency. Cases would be investigated and then sent to the full board, which would recommend punishment when wrongdoing was found.

Guess what alternative was included in the enabling law? You guessed it – mediation! One of the reasons for incorporating mediation was to give the civilian the chance to tell the officer why they were so upset with what the officer said or did and to provide the opportunity to the civilian to ask questions of the officer. [Sounds like a good idea to me!] There are criteria for the types of cases that are suitable for this program.

The New York Times has an excellent article [free subscription required – it’s worth it!] about the program which has drawn national and international attention.

How about something like this in your community?

To email me, click Perry S. Itkin.

“I’m Having A Really ‘Bad Hair’ Day!”

Picture this – you’re the mediator [ok, you knew that was coming]. During the mediation you discern that one of the parties is, well – stoned! What do you do? This is not as far fetched as you might think – take a look at this article in the New Jersey Law Journal [ok, it wasn’t a mediation but it could happen, right?!?].

One of the learning objectives in our training programs is to identify appropriate techniques for handling difficult situations [of which, I suggest, this would be one] or to identify appropriate courses of action when confronted with substance abuse during the mediation session [community resources and referrals, anyone?].

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420(b) Conduct of Mediation; Adjournment or Termination provides:

A mediator shall:

(1) adjourn the mediation upon agreement of the parties;

(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;

(3) adjourn or terminate the mediation if the mediator believes the case is unsuitable for mediation or any party is unable or unwilling to participate meaningfully in the process;

(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and

(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

Which option would you choose? Would you do anything else? Who are you going to call – or not?!?

So, what if it’s not a party who presents the difficult situation [or substance abuse], but rather the party’s lawyer as was reported here on Court TV News? Here’s a clue as to the facts: “I don't think you can tell a straight story because you are intoxicated,” said the trial judge to the lawyer. [You can actually watch a video of the hearing and if you do, note the exceptional demeanor of the judge.]

Go figure!

To email me, click Perry S. Itkin.

Dependency Mediation Certification Training

You might be interested in this! A Dependency Mediation Certification Training program is being offered by David A. Wolfson, Primary Trainer, from February 7 – 11, 2007 in Tallahassee, Florida.

The cost for the training is $975.00, but a special discount rate for early registration of $925.00 will apply until December 1, 2006.

Included with the training package [at no additional charge!] is the Dependency Module of Nutshell Mediation Office, a software program which, among other things, prepares all documentation necessary for dependency mediation.

If you have any questions about the program or to obtain registration information and a registration form, you can email David A. Wolfson by clicking here.

To email me, click Perry S. Itkin.

What Kind Of Jury Is This?

Do you think it’s a jury of your peers? Yes and . . . . It’s actually a group of Small Claims Mediators in Leon County [Tallahassee], Florida – see, they really are a jury of your “mediator peers!” Here’s one article and here’s another [nice to see my friends David Wolfson – the ADR Director for the 2nd Judicial Circuit, and Mark Palmquist, Mediation Coordinator, given recognition for their dedication and good work] from the Tallahassee Democrat about the Small Claims program and contributions that mediators make to the judicial system.

To email me, click Perry S. Itkin.

Desperate Mediation

O.K., not really! What about mediating “Desperate Housewives” scenarios, though? It can be done as is reported this article in the Arizona Daily Star. Do you think the scriptwriters are mediators too?!?

To email me, click Perry S. Itkin.

Is Duct Tape In Your Mediator’s Toolbox?

Have you ever been in a mediation where one of the mediation participants was verbally attacking another mediation participant [or even you the mediator]? Among the techniques we learn in mediation training is what to do in those instances. Take a look at the First District Court of Appeal Order to Show Cause in Thomas v. Patton, et al., 2006 Fla. App. LEXIS 15403 [Fla. 1st DCA 2006] to see how the judges addressed that type of conduct and how unimpressive it was to the appellate court.

This defamation suit was based on how the defendants reported the circumstances surrounding a guardianship. The trial court entered summary judgment in the defendants’ favor and the plaintiff appealed. The appellate court affirmed the summary judgment and sanctioned the appellant’s attorneys for the language they used in their initial and reply briefs.

Before you read the order [oops, too late!], try to figure out how the following terms were used:

Baloney
Fraud on the court
Twilight Zone Doctors
Internet freaks
Internet screwballs
Liars
Internet lynch mob
Elevating porno queens to the level of supreme court judges
Star Chamber proceeding
Poison pen letter

The court held that the arguments presented on appeal were, on their merits, frivolous, and awarded the appellees attorney’s fees for the appeal under F.S. 57.105.

By the way, just in case you are interested you can watch a video of the oral argument here.

To email me, click Perry S. Itkin.

Cyberweek 2006

The University of Massachusetts’ Center for Information Technology and Dispute Resolution and the InternetBar.org are offering their annual all-online [and totally free] Cyberweek conference to be held September 25 - 29, 2006. Cyberweek 2006: Shaping the Future of ODR and Online Justice will consist of many different kinds of content related to the field of online dispute resolution, from Skypecasts to meetings in virtual worlds to Podcasts to discussion forums and more.

Last year, there were several hundred participants from over forty countries.

Here’s the schedule of events.

You can register here. If you have any questions, you can email The Center.

To email me, click Perry S. Itkin.

Mediating With M&M’s

According to this article from ABC News, rapper Eminem and his wife Kimberley Mathers will be mediating issues stemming from their prenuptial agreement. How would you treat celebrities if they are parties in one of your mediations? Could you remain impartial and neutral? Would you keep an originally signed mediation agreement or an originally signed confidentiality agreement? Just food [or M&M’s] for thought – sorry, I couldn’t resist that one!

To email me, click Perry S. Itkin.

Mediation Sale!

According to this news release, the NASD announced its annual Mediation Settlement Month will take place in October and will offer incentives and special programs designed to promote mediation. By reducing rates and hosting these educational events, the NASD hopes to encourage parties to try mediation for the first time and to reinforce its value and effectiveness to those who have benefited from it in the past.

To email me, click Perry S. Itkin.

“I Speak Or Understand The Language!”

Although this is not arithmetic [you remember that term, right?!?], there are pluses and minuses here. The Florida Supreme Court decided in the case of In Re: Standard Jury Instructions in Criminal and Civil Cases, 31 Fla. L. Weekly S 581 [Fla. 2006] that jurors should be instructed they cannot use their own knowledge of foreign languages to decide whether a courtroom translation is correct if all parties to a case agree on its accuracy.

The court also unanimously agreed that jurors should be instructed that if they question the accuracy of an interpretation they should immediately bring the matter to the judge’s attention by raising a hand and not to comment about the matter in the presence of other jurors.

The justices voted [not unanimously], however, to seek further study before deciding whether that restriction also should apply if the parties disagree on the accuracy of a transcribed translation.

Transform the above scenarios to a mediation conference – you are a bi-lingual or tri-lingual mediator – now, how would you address these situations if they occur in mediation?

To email me, click Perry S. Itkin.

The Hazards of Cultural Interpretation

The 4th District Court of Appeal, in Basha v. Dorelien, 2006 Fla. App. LEXIS 15468 [Fla. 4th DCA 2006], illustrates the hazards of making cultural interpretations. The plaintiff argues on appeal that the trial judge erred in granting a motion for summary judgment because the motion was facially insufficient, genuine issues of material fact existed, and the court improperly based its decision on an issue not raised in the motion [imposing a Haitian cultural interpretation on the words employed in an e-mail]. The appellate court agreed.

A plain reading of the correspondence revealed that the defendants were well educated and fluent in English. The trial judge on his own imposed a Haitian cultural interpretation of the language employed in the communications between the parties. This was not an issue raised by the defendants’ motion for summary judgment. As plaintiff’s counsel argued at the hearing, had the motion raised the issue, the plaintiff could have countered with an expert on Haitian culture. [What is the meaning of the word “we” in a cultural context?]

Very interesting! So, is it sufficient to “speak the language” or do we need cultural experts in mediation also?

To email me, click Perry S. Itkin.

The Answer: We Don’t Know Yet!

The Question [do you feel a little like Johnny Carson’s Carnac The Magnificent?]: Am I still required to be a Florida lawyer or retired trial judge to be a Circuit Court Mediator???

On May 11, 2006 the Florida Supreme Court issued its opinion in In Re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 931 So.2d 877 [Fla. 2006] and adopted the new point system for certification as follows:

“We support the new point system in concept and can foresee no drawback to moving to a more practical and non-profession-based point system for certified county court, family, and dependency mediators. However, we are hesitant, at this time, without input from The Florida Bar, to remove the current requirement that a certified circuit court mediator must be a member of The Florida Bar or a retired trial judge from any United States jurisdiction. Therefore, we have modified the point requirements for circuit court mediators to retain this requirement for the time being, pending input from The Florida Bar.”

You can read The Florida Bar’s input here and the ADR Rules and Policy Committee’s response [filed Friday, September 8, 2006].

Now, we wait!

To email me, click Perry S. Itkin.

September 11, 2001

We Will Always Remember!

Nerf Mediation?

Whaaat?!? According to this article in the Wisconsin State Journal some mediators in Wisconsin let clients shoot each other with foam-rubber Nerf weapons as a form of venting. Is this a good idea?

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination provides that a mediator shall [no wiggle room here]

(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

The Nerf N-Strike Maverick Blaster comes with this warning: “CAUTION: Do not aim at eyes or face. To avoid injury, use only darts designed for this product. Do not modify darts or dart blaster.”

In 2002 during a court–ordered probate mediation, a brother shot his sister to death in front of his wife, an attorney–mediator and the attorneys for the two sides. He fled the office and then killed himself, according to police reports. This article in New York Lawyer [registration required] points out that the shooting in the conference room of a Boca Raton law firm has led to a premises liability lawsuit against the firm that could have important ramifications for attorney–client privilege in Florida [what about mediator’s premises liability had this occurred in a mediator’s office?]. You can read about the privilege aspect of the case in Hodgson Russ LLP v. Trube, et al., 867 So. 2d 1246 [Fla. 4th DCA 2004]. Note that although the opinion refers to a scheduled deposition, it was actually a mediation conference.

Would you consider using Nerf weapons in mediation in Florida? I don’t think so! There are better [and safer] ways for parties to vent; but, you knew that!

To email me, click Perry S. Itkin.

Charles Darwin – Mediator!

Well, I don’t know about that although I bet he would have been a good communicator! The Expression of the Emotions in Man and Animals is a book by the British naturalist Charles Darwin published in 1872, on how animals and humans express and signal to others their emotions. It was the beginning of scientific research on nonverbal communication.

The experts reveal that a substantial portion of our communication is nonverbal – handshakes, facial expressions, gestures, tone of voice, and hairstyle [for those of you who know me, please stop laughing!]. According to this article in About Psychology, research has identified several different types of nonverbal communication. Among them are:

1. Facial expression
2. Gestures
3. Paralinguistics [“Don’t use that tone of voice with me!”]
4. Body language and posture
5. Proxemics [personal space]
6. Eye gaze
7. Haptics [you know, “Reach out and touch someone!”]
8. Appearance

What others can you think of?

Speaking of handshakes, how about hugging as nonverbal communication? Take a look at this article in The Poughkeepsie Journal for an interesting commentary on the personal space invasion.

To email me, click Perry S. Itkin.

“Make Up Your Mind!”

Did you ever wonder what the ingredients of the “right decision” are? Okay . . . well, just in case you did you’ll find some answers in this interview with Luda Kopeikina in MITSloan Management Review. For starters [and you should read the interview], here are three elements:

1. Identify the best decision-making process [how about mediation?!?].

2. Analyze the best data you can find.

3. Aim for a state of clarity – reflect on the problem until you feel absolutely clear and aligned with the particular decision you make.

Do you think mediation parties incorporate these elements “in reaching informed and voluntary decisions” [does this sound at all familiar? Think self-determination.]? This should ring a bell with you. Remember Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.310(a) Self-Determination:

(a) Decision-making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination. [Emphasis added.]

Whoa! It’s our responsibility to preserve party self-determination; I believe we need to wonder about the above ingredients and the other concepts revealed in the interview. Don’t you?

To email me, click Perry S. Itkin.

Mediating Between Urinals!

Will wonders [and mediation] never cease and – wait – it’s not what you may be thinking!!! According to this article from KYW Newsradio in Philadelphia, plans for the new Comcast Center tower to be built in Center City call for waterless urinals. The urinals save water and they also use less plumbing than the traditional urinals [translation, less work for plumbers]. A city hall source says the plumbers union is “dragging its feet” as the developer seeks the necessary change to the city building code to allow the new devices. A state senator has been “mediating.”

To email me, click Perry S. Itkin.

Huckleberry Finn – Mediator?

Maybe; could have been; I’m not sure. His view of ethics is sometimes, well . . . . . you decide. In his colorful way, Mark Twain’s Huckleberry Finn said:

“What’s the use you learning to do right when it’s troublesome to do right and ain’t no trouble to do wrong, and the wages is just the same? I was stuck. I couldn't answer that. So I reckoned I wouldn't bother no more about it, but after this always do whichever come handiest at the time.”

Does that sound like situational ethics? Remember at the time he voiced the above [Chapter 16] he was faced with the following – whether to turn Jim, the runaway slave and also his friend, into the two men looking for Jim and other runaways, or help Jim escape out of slavery which was breaking the law. Thus, Huck was trapped in a difficult moral dilemma. After a great deal of reasoning, Huck realized he would feel worse if he turned Jim into the authorities and decides it would be best to let him escape. Huck comes across as unbiased and open-minded as he continually questions his own motivation and life in general throughout the book. He does have a strong sense of right and wrong and often acts out of moral conviction. Could he be neutral and impartial though? Does he see himself as a change agent or rebel?

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.200 Scope and Purpose provides:

“These Rules provide ethical standards of conduct for certified and court-appointed mediators. They are intended to both guide mediators in the performance of their services and instill public confidence in the mediation process. The public’s use, understanding, and satisfaction with mediation can only be achieved if mediators embrace the highest ethical principles. 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.” [Emphasis added.]

What do you think Huck would do to resolve an ethical, as opposed to a moral, dilemma – would he do the right thing if he were a mediator?

To email me, click Perry S. Itkin.

“I yam what I yam!”

Popeye’s catchphrase is an expression of American individualism; how we approach conflict is measurable through various personal styles - all in a cultural context.

Ron Kraybill, publisher of Riverhouse ePress, has released to trainers a free review copy of the 22 page Style Matters: The Kraybill Conflict Style Inventory. The inventory is a recently developed five-styles-of-conflict inventory used by business managers, organizational consultants, and conflict resolution trainers worldwide to teach conflict management skills.

Like the widely-used Thomas Kilmann Conflict Mode Instrument and a number other inventories, Style Matters is based on the Mouton-Blake Grid. However, Style Matters adds a unique feature making the instrument culturally sensitive [this is really a bonus!]. For example, users are instructed to identify whether they are from an individualistic (i.e. white, Anglo North American) or a collectivistic (i.e. black, Hispanic, indigenous) culture, and are given slightly differing instructions accordingly.

Another significant feature of Style Matters is that it gives users two sets of scores, one for “calm” conditions and one for “storm”, recognizing that many people’s style shifts under high stress. Some people who are high in Directing behaviors in the beginning of a conflict shift into Avoiding as stress mounts and others may shift from Avoiding to Directing.

Trainers and consultants may request a free review copy in PDF form, by sending a note indicating their organizational affiliation to StyleMattersOffer@RiverhouseEpress.com. A link to a PDF file will immediately be forwarded.

Even if you are not a trainer, here are some sample pages from Style Matters to take a look at – especially the fifth page!

To email me, click Perry S. Itkin.

“Food, Glorious Food!”

I wonder if Judge Pendelton Gaines of the Superior Court of Arizona, Maricopa County was humming the song “Food, Glorious Food” from Lionel Bart’s musical “Oliver!”, an adaptation of Charles Dickens’ classic, “Oliver Twist,” as he penned this decision granting Plaintiff’s Motion to Compel Acceptance of Lunch Invitation [really, I am not making this up!].

Here’s what happened. Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed [imagine that!]. Defendant’s counsel distrusted Plaintiff’s counsel’s motives and feared that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.

I think you’ll find the judge’s ground rules creatively entertaining [even absent rock, paper, scissors]!

By the way, what’s the proper course of action for a mediator to follow if one of the lawyers during mediation lunch time offers to pay for the mediator’s lunch? Take a look at Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.330(c), Impartiality, Gifts and Solicitation which provides:

A mediator shall neither give nor accept a gift, favor, loan, or other item of value in any mediation process. During the mediation process, a mediator shall not solicit or otherwise attempt to procure future professional services.

But [and you know what that means!] be sure to read the Committee Note.

What about the mediator paying for the participants’ lunches? Take a look at Mediator Ethics Advisory Committee Opinion 2001-006.

Hmmm!?!?! What about no lunch?!?

To email me, click Perry S. Itkin.

"I'm From Missouri - Show Me!"

OK, I’m not really from Missouri, the “Show-Me State” [but you knew that!]. I wanted to let you know that I have just read How to Negotiate Like a Pro. In one compact work, Mary Greenwood has synthesized a cornucopia of information about negotiation. This book is important not only for negotiators but also for mediators. It’s easy to understand and contains a specific set of rules in a practical format. Each of the 41 rules is listed with a concise explanation of how and when to use it in negotiation. One of the nice features of this positive book is a script [which really illustrates that it is a “how to do it” book] at the end of each rule – actual language you can use during negotiation and adapt to a mediator skill set.

As I read through the 76 page paperback book [you can easily carry it in your briefcase] I had, in my mind’s eye, the different applications for mediators in asking questions, framing, reframing, recognizing negotiation tactics and, in general, facilitating negotiations. It’s lessons will work exceedingly well!

I thought you might like to know about this valuable resource!

To email me, click Perry S. Itkin.

“I Am A Croissant!”

OK, not a croissant; how about “I am a jelly doughnut!” OK, how about none of the above! One day we may find ourselves [if you haven’t already had the experience] mediating cases where there is a language barrier. Immediately you think – interpreter, right?!? Clearly that works [although not without pitfalls]. What about the necessity, though, for the mediator to build rapport with the disputing parties? How would you develop this in that scenario? How about speaking a phrase or two in the other language – at least trying to do so – that might do it. It’s fun to try if you have a good sense of what you’re about to say. Be careful, though, you certainly don’t want to mis-speak in the other language.

Remember 1963 [please say yes!]. In any event, after the Berlin Wall was built as a barrier to movement between East and West Berlin, President John F. Kennedy gave a memorable speech in West Berlin as morale boost for West Berliners who lived inside East Germany and who feared a possible East German occupation. He said:

Two thousand years ago the proudest boast was civis romanus sum [I am a Roman citizen]. Today, in the world of freedom, the proudest boast is ‘Ich bin ein Berliner.’ All free men, wherever they may live, are citizens of Berlin, and, therefore, as a free man, I take pride in the words ‘Ich bin ein Berliner!’

He said he was a citizen of Berlin [to build that rapport] although it was widely reported that he said he was a jelly doughnut [which, of course, he was not!]. His unmistakable accent may have lead to that urban legend.

Think about it for a minute – how do you feel when someone who isn’t fluent in your language tries to communicate with you in your language – feels kind of nice sometimes; don’t you begin to feel a tinge of rapport building?

To email me, click Perry S. Itkin.

Would You Do Something Like This?

According to this article from The Recorder as reported on Law.com, the California Commission on Judicial Performance last week publicly admonished a Riverside County judge who delayed a murder trial verdict so he could attend a baseball game.

Remember, Florida Rules for Certified and Court-Appointed Mediators, Rule 10.430 Scheduling Mediation provides:

A mediator shall schedule a mediation in a manner that provides adequate time for the parties to fully exercise their right of self-determination. A mediator shall perform mediation services in a timely fashion, avoiding delays whenever possible.

So, as a mediator would you do something like the Riverside County judge did? Naahhhh!

To email me, click Perry S. Itkin.

“But, You Shouldn’t Have Done That! Pay The Mediator Anyway!”

The appellant in Areizaga v. Board of County Commissioners of Hillsborough County, et al., 2006 Fla. App. LEXIS 13672 [Fla. 2nd DCA 2006] failed to appear at a court ordered mediation [actually, an oral court order not reduced to writing – not that it made a difference here]. The trial judge ordered him to pay the bill of the mediator [a very good move!] as a sanction.

Florida Rule of Civil Procedure 1.720(b) allows the court to impose the sanction of payment of the mediator’s bill when a party fails to appear for a scheduled mediation without good cause. Among appellant’s defenses were the lack of a written order [not so fast held the Second District Court of Appeal!] and that the County failed to coordinate the date and time of mediation with him [the evidence showed otherwise – but, in any event, what’s the mediator’s coordination responsibility, if any?]

Appellant also argued that in light of Florida Rule of Civil Procedure 1.710(b), which prohibits mediation of extraordinary writs, mediation should never have been ordered. Yes, agreed the appellate court, but [and you know what that means!] appellant should not have ignored the court order and should have brought the issue to the attention of the trial court before the mediation – not afterward.

All to say, ultimately the order to mediate the extraordinary writ was quashed and appellant still had to pay the mediator [another very good move on a higher judicial level – Yessss!].

To email me, click Perry S. Itkin.

Archimedes – A Mediator!

Okay, Archimedes was really an ancient Greek mathematician, physicist, engineer, astronomer, and philosopher and not actually a mediator. He is credited with having said “Eureka!” [you know, “I have found it!”] following his discovery of the principles of density and buoyancy.

I wonder if “Eureka” could be a verb and, if so, I have “Eureka’d” 2 mediation employment opportunities in the 19th Judicial Circuit, Fort Pierce, Florida. One is for a Mediation Services Coordinator and the second is for a Circuit/Family Mediator. Take a look.

I thought you might be interested!

To email me, click Perry S. Itkin.

“Okay, Vanna, I’d Like To Buy A Comma For . . . .”

. . . . $2.13 million! You’re kidding right! Well, yes, however [and you know what that does!] it’s a real life Wheel of Fortune problem in an agreement which contained the following language [and punctuation]: The agreement

shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.

The second comma is the culprit here. When can this agreement be terminated? You’ll have to read this article in the Canadian newspaper The Globe and Mail to find out. Also, you might want to read this interesting analysis by Ken Adams in AdamsDrafting.

All to say, commas are important – watch out!

To email me, click Perry S. Itkin.

Did You Know You Have The “It Factor”?

The whaat??? You know, the “It Factor”. No, I’m not referring to the euphemism for sex appeal used to describe the actress Clara Bow [the original “It Girl”] in 1927 – it’s much more than that. The “It” is charisma. We all have it – some have more than others. Charisma includes charm, personality, appeal, magnetism, and allure. An important personal quality, charisma enhances our mediator effectiveness and includes language use, non-verbal communication, and eye contact.

This article in the Sun-Sentinel offers some tips on how to develop more of the “It Factor”!

To email me, click Perry S. Itkin.

A Useful Primer

Many posts contain links to appellate opinions and I thought it might be helpful to suggest reading this essay by Orin Kerr [a professor at The George Washington University School of Law] on How to Read a Judicial Opinion. Although it’s a guide for new law students others might benefit from its helpful contents.

To email me, click Perry S. Itkin.

Point System Update For Circuit Civil Mediators

Wait – not that point system!

The Florida Supreme Court, in it’s opinion In Re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 931 So.2d 877 [Fla. 2006], adopted the new practical and non-profession-based point system for certified county court, family, and dependency mediators. However, the court was hesitant, at that time, without input from The Florida Bar, to remove the current requirement that a certified Circuit Court mediator must be a member of The Florida Bar or a retired trial judge from any U.S. jurisdiction and therefore retained this requirement pending comment from The Florida Bar.

The Florida Bar has submitted its comment. The ADR Rules and Policy Committee has 30 days after service of the Bar’s comment within which to respond.

Stay tuned for further developments!

Enjoy your weekend!

To email me, click Perry S. Itkin.

“I Told You I Was Sick!”

The tombstone in the picture is actually located in the cemetery in Key West, Florida.

What does it have to do with mediation? Nothing really, and yet . . . . In the Fourth District Court of Appeal case of Marlowe v. Brown, et al., 2006 Fla. App. LEXIS 12852 [Fla. 4th DCA 2006], the appellate court framed this question: Does a “mediation settlement agreement” entered into at the beginning of the divorce case [i.e. a ‘mediation agreement for temporary relief’] control the distribution of property after the husband’s death [which occurred before the entry of a final judgment of dissolution of marriage]?

The agreement did not specify what would happen if one of the parties died during the pendency of the divorce action [would you have thought to include this type of provision?]. By the way, the husband, prior to his death, moved to set aside the mediation agreement contending that the agreement was procured by mediator misconduct and that the equitable distribution paragraph was merely an “agreement to agree”. Motion denied! Thereafter [well, not immediately thereafter – it was actually 9 months later], the husband died and there had been no final judgment of dissolution, no valuation of properties, and no plan of equitable distribution. Shortly after the husband died, the wife filed a motion to dismiss the divorce case. Another motion denied! Thereafter [well, not immediately thereafter – it was actually 22 months later], the wife died.

There was much more procedurally and, all to say, the appellate court answered the above question with a “no” and held that the dissolution of marriage action terminated with the death of the husband and the trial judge should have granted the wife’s motion to dismiss the case. The opinion is worth reading especially those sections which focus on the appellate court’s view of the mediation agreement.

So, even mediated temporary relief agreements need to be detailed and, as to certain contingencies, well . . . .

To email me, click Perry S. Itkin.

“What A Diff’rence A Day Makes”

No, not the 1959 album by Dinah Washington featuring the hit single by the same name! [You do remember the song, don’t you?!?]

Oh, well, in any event, the contract provision in dispute provided a set number of days within which a party was to make a payment. The final payment day fell on a Saturday. Payment was made on the following Monday. Was it timely? You’ll have to read the Second District Court of Appeal opinion, Metro Development Group, L.L.C. v. 3D-C & C, Inc., et. al, 2006 Fla. App. LEXIS 13029 [Fla. 2nd DCA 2006] to find out! Although the opinion does not involve mediation, the agreement drafting lessons to be learned make reading this opinion worthwhile.

Remember, Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420(c) Conduct of Mediation, Closure, provides:

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. [Emphasis added.]

To email me, click Perry S. Itkin.

Are Mediation Fees A Marital Liability Or A Cost Issue?

The answer is . . . . According to the Second District Court of Appeal in Smith v. Smith, 2006 Fla. App. LEXIS 12843 [Fla. 2nd DCA 2006], mediation fees are not a marital liability for purposes of equitable distribution as defined in F.S. 61.075(5). In this divorce case the trial court allocated to the Husband, as a marital liability, $1,960 in mediation fees paid by the Husband. Not so fast said the appellate court!

If the parties were referred to mediation by court order, the apportionment of mediation fees should have been stated in the order of referral pursuant Fla. Fam. L. R. P. 12.740(c). In this case, since the mediation fees were apparently not addressed in a mediation order, they should be addressed as a cost issue under F.S. 61.16(1).

This makes sense doesn’t it?!? If the cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage and the court ordered the parties to mediation [i.e. after the filing of a petition, how could mediation fees be a marital liability?].

Do you think the outcome would be different if the parties attended pre-suit mediation?

To email me, click Perry S. Itkin.

Become A Florida Supreme Court Certified Mediator – A Step By Step Guide!

In May of 2006, the Florida Supreme Court issued opinion SC05-998 which temporarily instituted two options to qualify as a Florida Supreme Court certified mediator. These options are available only from August 1, 2006 – August 1, 2007. In order to assist applicants in understanding both options for certification, the Dispute Resolution Center has created a Step By Step Guide which outlines the requirements for each option.
This is a valuable resource - take a look!

To email me, click Perry S. Itkin.

“Turn, Turn, Turn” - A Negotiation Technique

Do you remember the rock band The Byrds and their 1965 number one hit Turn, Turn, Turn? How clever of them to introduce those lyrics as a negotiation technique!

Okay, not exactly! However, in Lisa Bracken’s article Turn Objections into Concessions and Adversaries into Advocates in Corporate Negotiations appearing in The Negotiator Magazine, we can see the application of the “negotiation turns” concept, frequently referred to as “reciprocity”.

The article “reveals the inherent complexity of the objection and examines ways in which you can work more cooperatively with your adversary in creating mutual accord.”

It is well-written, contains useful examples of how to implement the technique and is worth reading several times!

Oh, by the way, I thought I’d experiment by adding [from time to time] a picture to my posts. What do you think about that idea? Also, I'm trying a new font - how do you like it? Please let me know - thank you.

To email me, click Perry S. Itkin.

“Remember Me?”

Well, not me exactly – I’m referring to the interests of persons affected by mediated settlement agreements. Florida Rules for Certified and Court-Appointed Mediators, Rule 10.320, Nonparticipating Persons provides:

A mediator shall promote awareness by the parties of the interests of persons affected by actual or potential agreements who are not represented at mediation.

Although this Fourth District Court of Appeal case did not involve mediation, Koenig v. Theofilos, 2006 Fla. App. LEXIS 12841 [Fla. 4th DCA 2006] demonstrates the essence of the rule.

Likewise, in Falco v. Bridgestone/Firestone North AmericaTire LLC, 2006 Fla. App. LEXIS 12826 [Fla. 1st DCA 2006] the First District Court of Appeal reminds us that the trial judge, pursuant to F.S. 744.387, must authorize a settlement proposed on behalf of a ward in order for the settlement to be effective.

All to say, there’s lots for mediators to think about – isn’t there?

To email me, click Perry S. Itkin.

“We Are Not Kidding!”

In an earlier post I highlighted a Fifth District Court of Appeal case in which the appellate court imposed sanctions against the appellee and his lawyer for failing to comply with its appellate mediation order. Guess what?!? It’s baaack!

In Hernando County School Board v. Nazar, 31 Fla. L. Weekly D 1776 (FL 5th DCA 2006) appellant filed a notice of non-compliance, indicating that Appellee’s attorney has paid one-half of the mediator’s fee, but the remaining half has not been paid by the appellee. In addition, the notice indicates that its reasonable attorney’s fees and costs have not yet been paid.

The Fifth District ordered that Appellee’s answer brief will be stricken and the court shall make a determination on the merits of this appeal without consideration of the contents of that brief if appellee does not pay the mediator’s fee within 15 days.With regard to the unpaid attorney’s fees and costs, the court directed Appellant’s counsel to schedule a hearing before the trial judge, acting as a commissioner to determine the reasonable amount of costs and fees, which shall then be promptly paid, fifty percent by Appellee and fifty percent by Appellee’s attorney.

In view of the history of this case thus far, what do you think the future holds for Appellee and his attorney?

Stay tuned [but really, I hope there is nothing more to say due to actual compliance]!

To email me, click Perry S. Itkin.

What Do Mediators And Hangmen Have In Common?

They both belong to a profession! How about that?!? Look, in each field, among other things, there are:

Rules of procedure
Ethics
Selection processes
Requirements to be skillful under pressure
Confidentiality standards
Good moral character [really!] issues
Billing record requirements

According to this article from BBC News, being a hangman was one of the hardest jobs to get [sound vaguely familiar?].

Okay, so just what [or who] is a “professional mediator”? Here is an interesting article by Jeff Kichaven to help you answer the question and give you information you can use while debating the subject.

To email me, click Perry S. Itkin.

Small Talk Is Really Big Talk!

Small talk may be defined as the art of making conversation for the sake of making conversation. However, in fulfilling our role as mediators, small talk is really “big talk” as you will see in this article by Susan RoAne.

Remember, among the concepts we learned in mediation training is for the mediator to understand the importance of demonstrating empathy, building rapport, establishing trust, setting a cooperative tone, demonstrating neutrality and impartiality, demonstrating sympathetic listening and questioning, empowering parties and remaining non-judgmental. A tall order, indeed! It can be accomplished, in part, through “schmoozing” – i.e. small talk.

So, are you a good “schmoozer?”

Enjoy the weekend; you've earned it!

To email me, click Perry S. Itkin.

Pre-Trial Mediation Given New Meaning!

In the British case of Dr. S. R. Burne v. A [2006] EWCA 24 the Court of Appeal ordered the parties to attend mediation before a re-trial could be held in this eight year old case. Lord Justice Sedley said:

“On the issue before us there are powerful arguments either way and I express no view whatsoever as to the eventual outcome. I do, however, feel very strongly that this is a case which must be referred to alternative dispute resolution before it is restored for the re-trial. Both parties should take stock of the strengths but also the weaknesses of their respective cases which are now plain for all to see and I hope mediation will bring a swift conclusion to a tragic event.”

To email me, click Perry S. Itkin.

The Top 10 Reasons Not To Mediate

This is not the Late Show David Letterman’s Top 10 – these belong to Philip S. Cottone of the Property Trust Advisory Company and, while the focus is on mediation in the securities industry, it has application across the board [not the Big Board i.e. stock exchange, the mediation board – sorry, I couldn’t resist]. Here are the top 10 and you can download them [and some very interesting commentary] by clicking on this link from the Practicing Law Institute which is an excerpt from PLI’s Course Handbook Securities Arbitration 2005: Telling Your Story #6855.

The Top 10:

1. Saying I want to mediate will show weakness to the other side and telegraph I think I have a weak case.

2. I have a slam dunk case and there is no point in mediating.

3. I don’t want to show my case to the other side before trial.

4. The case is too complex.

5. The parties (or the lawyers) are too emotionally involved to sit down together.

6. It will be a waste of time.

7. The case will not settle because the other side is unreasonable and will not listen until we get to the courthouse steps.

8. My client doesn’t want to mediate.

9. I have to spend the time preparing for trial, and at trial I have the best chance of getting a good award for my client.

10. I can do it better myself.

So, you’ve never heard these before – right?!? Naahh!

To email me, click Perry S. Itkin.