Tuesday, February 28, 2006

“If You Had Only Told Me!” – A Defense To Sanctions

In the Fifth District Court of Appeal case, Hernando County School Board v. Nazar, 2006 Fla. App. LEXIS 1995 [Fla. 5th DCA 2006], appellant filed a motion with the appellate court seeking the imposition of sanctions against appellee, Paul Nazar, and his counsel, Peter Capua, for their failure to appear at court-ordered appellate mediation.

The mediator, appellant’s counsel and party representatives all traveled to the site of the mediation. Nazar did not appear for the scheduled mediation. Attorney Capua did not appear in person for the mediation, although he attempted to appear by telephone. While no motion was filed with the court seeking to be excused from the personal appearance requirement, Capua contacted the mediator's office and sought to be excused from appearing personally at the mediation [not a good move]. The mediator did not excuse [this was a good move] the personal appearance of either Capua or Paul Nazar due to the court’s order which expressly stated that personal attendance can only be excused by the court.

To learn what reasons were given for not appearing and what the sanctions were, read the opinion. It’s a quick read.

To email me, click Perry S. Itkin.

Monday, February 27, 2006

I’m A Better Decision Maker When I’m Unconscious!

Okay, not really – but maybe! According to this article in Science magazine [subscription required] important decisions are better made when the thoughts about them are “put out of mind” and the choices are complex. The “deliberation without attention” theory has application in mediation. To learn a little more about the concept you might like to read about the study in this article from Yahoo.com News or this article [registration required and it’s free] in the New York Times.

So, the next time you hear a party say “I’d like to sleep on it overnight” [allowing unconscious thought to kick in], you just might suppose that has some value – or not [depending on . . . .].

Think about it [pun intended] – have you ever awakened with a great idea or a solution to a problem?!?

To email me, click Perry S. Itkin.

Friday, February 24, 2006

President Bush On Mediation – What Did He Say?!?

In an interview reported in Pakistan’s Daily Times, President Bush was asked about proposals for mediating between India and Pakistan:

Q: Mr. President, in your speech, you talked about the Kashmir dispute and you said that you would like India and Pakistan to take bilateral steps to resolve the dispute. Pakistan has made certain proposals, but they are not reciprocated by India. And it seems that this bilateral process is not going anywhere. There’s need for a third-party mediation or some sort of help. Do you have any specific proposals for that?

Bush: First, I’d like to make sure I clarify my statement for all to read. America supports a solution that is acceptable to all sides — since you’re probably the only person in the room that paid attention to my speech. In the speech, as you know, I said “to both sides”. The language should be “all sides”, because it recognises [sic] that a solution must be acceptable to India, Pakistan and those living within Kashmir. Our position is one that says a dispute that has been so long in a nation’s history can best be resolved when two nations make the determination to sit down and come up with a solution that is acceptable to all sides. Of course, during my discussions, I will encourage that dialogue to go forward. I’m convinced that history changes, and as history changes, attitudes can change, circumstances change, and that we have a possibility to see this issue resolved by strong and courageous leaders. I’m pleased to see the amount of trade that’s taking place between India and Pakistan. It’s a substantial increase from July of ‘04 to July of ‘05. I thought that the — the new transportation routes between India and Pakistan are hopeful signs. And so the role of the United States, in our judgment, is one that will help lead to a settlement that is acceptable to all sides.”


To email me, click Perry S. Itkin.

Thursday, February 23, 2006

If It Looks, Walks And Quacks Like A Duck – It’s Not Mediation! It’s A Duck!

There is a myriad of alternative dispute resolution processes. You know them – negotiation, conciliation, facilitation, mediation [of course], early neutral evaluation, ombudsman, fact-finding, mini-trial, summary jury trial, arbitration, private judging, and litigation [again, of course]. There are combinations of these and other processes [we are very clever thinkers!]. There are also other ADR processes as well. All to say, the most visible are negotiation, mediation, arbitration and litigation. What happens sometimes [and sadly so] is that some of the other ADR processes are called mediation when, in fact, they are not as reflected in this opinion letter to 2TheAdvocate.com in Baton Rouge, Louisiana. Reading it, you can almost feel the writer’s frustration. You can, can’t you?

To email me, click Perry S. Itkin.

Wednesday, February 22, 2006

It’s Not What It Seems

According to the headline in Yahoo’s UK Entertainment News, actress Sharon Stone “lost” custody of her son as a result of an agreement reached in mediation. Not so fast! Take a look at the article. Was this a “good” agreement? “Good” for whom? What do you think about the agreement? Are more details needed before you come to a conclusion?

Remember, Florida’s 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.”

To email me, click Perry S. Itkin.

Tuesday, February 21, 2006

The Impartiality Hokey-Pokey!

According to the Second District Court of Appeal in Stevens v. Americana Healthcare Corp., 2006 Fla. App. LEXIS 1536 [Fla. 2nd DCA 2006], a writ of prohibition was issued against a trial judge, who first suggested he could not be impartial and then changed his mind when a party moved to disqualify him, and denied the motion to disqualify.

The judge voluntarily disclosed a personal or social relationship with some of the witnesses [a good move], invited the parties to make a motion for disqualification [another good move], suggested it would be granted [an even better move] but then denied the timely motion [a very bad move]. The appellate court did not believe that the trial judge’s voluntary disclosure of his friendship or acquaintance with some of the witnesses who might testify at trial in this matter was sufficient by itself to require the judge's disqualification. It was the judge’s remarks thereafter that lead to his disqualification.

What can mediators learn from this opinion?

Well, for starters how about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.340(a) and (c), Conflicts of Interest?

(a) Generally. A mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.

(c) Effect of Disclosure. After appropriate disclosure, the mediator may serve if all parties agree. However, if a conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the parties.

All to say, conflicts of interest and impartiality are closely connected [but you knew that, right?!?] and something we should always be attentive to.

To email me, click Perry S. Itkin.

Monday, February 20, 2006

“E.T.” Is Barred From Mediation!

Well, not exactly the real “E.T.” [the real E.T.?]– the concept is there however according to this article in The Birmingham News. A U.S. District Court Judge [not in Florida] ordered all parties [HealthSouth, investors and insurers] to stay at a mediation session until the mediator releases them. The Judge also ordered that the “designated client representative of each defendant shall have absolute authority to settle without the need to phone home for additional authority.”

Florida Rules of Civil Procedure, Rule 1.720(b), Mediation Procedures – Sanctions for Failure to Appear, requires, among others, the appearance of the party or its representative having full authority to settle without further consultation or a representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.

So, the Judge’s order on the issue of authority to settle is consistent with the above rule. However, what do you think about that part of the order that requires the parties to stay in mediation until released by the mediator? Any ethical dilemmas here? How do you balance the mediator’s responsibilities to the court with the mediator’s responsibilities to the parties?

What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination?

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.

After considering this rule, would you mediate under this order or would you decline the appointment?

To email me, click Perry S. Itkin.

Friday, February 17, 2006

Mediation Training Means Something!

According to this article on AllAfrica.com, the Centre for Effective Dispute Resolution [CEDR] reports that in Lagos, Nigeria, the problems Nigerians have in resolving conflicts, was as a result of the fact that well trained mediators have been denied the privilege of mediating in such conflict situations. Simply put, untrained mediators “mess things up”. I know, you’re shocked!

To email me, click Perry S. Itkin.

Thursday, February 16, 2006

Gender and Negotiation – Is There A Nexus?

According to this article from the Harvard Business School’s Working Knowledge, gender is not a good predictor of negotiation performance, but ambiguous situations can trigger different behaviors by men and women. Suggestions are offered on how to neutralize the differences and reduce inequities. How would you implement these suggestions in your mediations?

To email me, click Perry S. Itkin.

Wednesday, February 15, 2006

“Florida Mediator” Posts Are Now Available By E-mail!

Never miss another post! If you like Florida Mediator then perhaps you’d like to sign up to receive it by email. Just scroll down this page and near the end of the right column, enter your email address and click on the “Subscribe me!” button. You’ll receive an email requesting that you confirm your subscription registration. It’s as easy as that!

To email me, click Perry S. Itkin.

Tuesday, February 14, 2006

Am I Qualified To Be A Mediator? Part II.

In an earlier post last year, I reported that the ADR Rules and Policy Committee of the Florida Supreme Court filed its Petition to amend the Florida Rules for Certified and Court-Appointed Mediators relating to revising the qualifications for mediator certification and other matters. Oral argument was held February 8, 2006. Judge Shawn Briese, Chair of the ADR Rules and Policy Committee, presented a masterful argument in support of the petition. A large part of the questioning focused on non-lawyers serving as mediators.

You can watch a video of the argument or you can read the transcript. It’s quite interesting!

Now, we wait.

To email me, click Perry S. Itkin.

Monday, February 13, 2006

Mediation Failed – What Do Parties Think About?

$51,000.00 was spent by the City of Clarksville, Tennessee, on mediation in racial discrimination lawsuits involving police officers and the police department. Mediation “failed” according to this editorial in The Leaf-Chronicle. What do you think the people of Clarksville are wondering about? If you were the mediator, is there any positive foreshadowing you would have done in this situation?

To email me, click Perry S. Itkin.

Thursday, February 09, 2006

Florida Family Law Rules of Procedure Amended

The Florida Supreme Court, in In Re Amendments To Florida Family Law Rules Of Procedure Form 12.900(a), SC05-2154 [Fla. 2006], adopted Florida Family Law Rules of Procedure Form 12.900(a) effective immediately.

This form must be used when anyone who is not a lawyer in good standing with The Florida Bar helps a party complete any Florida Family Law Form. The nonlawyer must complete this form and both the party and the nonlawyer are required to sign it before the nonlawyer assists the party in completing any Family Law Form.

This is important information for Family Law Mediators who are not lawyers. It would be helpful to read the opinion and the form itself in conjunction with MEAC Opinions 2000-009 and 2001-003. In summary, these opinions advise that “assisting pro se litigants with filling out forms approved by the Supreme Court of Florida after a mediated settlement agreement is not a per se violation of the mediation rules; however, caution should be exercised to ensure compliance with mediation rules and other professions’ standards of conduct.”

To email me, click Perry S. Itkin.

Wednesday, February 08, 2006

A Written Mediation Agreement – Why Bother?

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420, Conduct of Mediation, (c) 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.”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Professional Advice Or Opinions, (b) Independent Legal Advice, provides “When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the party of the right to seek independent legal counsel.”

In the Fourth District Court of Appeal case of Matos v. Matos, 2006 Fla. App. LEXIS 1162 [Fla. 4th DCA 2006], the pro se parties went to a lawyer-mediator to work out a “settlement.” The husband moved to enforce the oral “marital settlement agreement.” The mediator testified that the parties came to her after they reached an informal agreement which she was to reduce to writing. Although nothing was in fact written down, the mediator thought that the parties came to an agreement. Moreover, she stated that she was not a constant participant in the negotiations.

There’s much more to the underlying facts in this case, which is worth reading, including domestic violence and financial disclosure issues. The appellate court reversed the final judgment and remanded the case for a new trial on the issue of division of the marital assets and alimony.

What, if anything, might have been different if the parties’ agreement was reduced to writing and the rules above complied with? Given the lawyer-mediator’s testimony, was this really a mediation? What do you think?

To email me, click Perry S. Itkin.

Tuesday, February 07, 2006

Here’s Florida Legislation You’ll Want To Follow!

The 2006 session of the Florida Legislature will convene March 7th. House Bill 7019 , a bill relating to mediation, was filed January 23, 2006 by the Civil Justice Committee.

In 2005, family court references in the statutes were changed to references to the unified family court model; however, mediation law was not correspondingly changed. This bill redefines mediation in Chapter 44, F.S., to provide for mediation in the unified family court. It reflects the changes created by the passage in 2005 of s. 25.375, F.S., which created the unified family court system and amends s. 44.1011, F.S., to create a definition for “unified family court mediation”. It also makes other technical and corrective changes to mediation law.

A sponsor in the Senate is expected.

To email me, click Perry S. Itkin.

Monday, February 06, 2006

Was Mediation Abused? You Decide.

According to this article in The Miami Herald, seven named plaintiffs in a class action lawsuit challenged the City of Miami’s fire fee and a $7 million settlement was reached in mediation. The 80,000 others supposedly in line to benefit from the class-action got nothing. Also, here’s the memorandum from the Office of the City Attorney about the lawsuit and recommending settlement. Read the article, visualize what may have occurred during mediation, and then decide – was mediation abused? Is this even the right question to ask? What about confidentiality? What do you think?

To email me, click Perry S. Itkin.

Friday, February 03, 2006

“I’m Going To Kill You! Let’s Mediate.”

Well, not exactly! According to this article from News 14 Carolina, a high school student who was accused of cheating by his teacher allegedly screamed at her, “I’m going to kill you!” She obtained a restraining order against him [there was more than just the screaming]. At a hearing to extend the restraining order, the teacher and the student agreed to go to mediation and they reached an agreement, some of the terms of which are in the article. How about that!

To email me, click Perry S. Itkin.

Thursday, February 02, 2006

The Sky Is Not The Limit!

Mediation is powerful – it provides disputing parties with opportunities to craft outcomes tailored to their unique needs and circumstances in ways that neither judge nor jury can develop via decision or verdict. However, there are limits as demonstrated by the First District Court of Appeal in Wakeman v. Dixon, 2006 Fla. App. LEXIS 659 [Fla. 1st DCA 2006]. Although these were not mediation agreements, the several agreements entered into by this same sex couple providing for co-parenting for two children born to one of them as a result of sperm donation, were creative, tailored and unenforceable. Under Florida law, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and agreements providing for visitation by a non-parent are unenforceable.

The concurring opinion urged the legislature to address the needs of children born into or raised in non-traditional households when a break-up occurs.

I wonder, if someone can waive their right to an attorney during in-custody interrogation or otherwise waive their Fifth Amendment privilege against self-incrimination, can they waive their constitutional right to privacy in a mediation agreement? What do you think?

To email me, click Perry S. Itkin.

Wednesday, February 01, 2006

What Was On The Mind Of A Murderer?

In the latest of a series of posts about the murder trial of the husband who stabbed his wife to death after a mediation conference, this article from Inside Bay Area gives us an uncommon insight into what the mediant [I made that up] husband was thinking about as his expectation of family mediation. He testified in his defense. Now, I was not being judgmental [I’m still a mediator] when I titled this post. According to this article in The Mercury News the jury found him guilty of first-degree murder.

To email me, click Perry S. Itkin.