MEAC Opinion 2005-005 Now Online!

Here’s a summary of MEAC Opinion 2005-005 which addresses a confidentiality inquiry in the context of a grievance involving a mediator in a court based mediation unit. A conflict issue is also discussed.

1. While a mediation unit is not a mediator per se, many of the communications made to the mediation unit would be included under the umbrella of confidentiality. Each co-mediator is to be treated as a mediator subject to the Florida Mediation Confidentiality and Privilege Act. The Committee declines to answer the question whether the party breached confidentiality as being beyond its jurisdiction.

2 and 3. Assuming the party has affirmatively requested that the complaint be handled at the trial court level, the mediator may reveal mediation communications to the mediation office charged with investigating the conduct.

4. Revelations made by a mediator in furtherance of a grievance investigation should be kept in a separate file independent from the court file.

5. The relationship described in the question would not necessarily be a “clear conflict” requiring the withdrawal of the mediator regardless of the express agreement of the parties. However, if the mediator is no longer impartial or the parties request that the mediator no longer continue, the mediator is required to withdraw from the mediation.

6. A different mediator within the mediation unit may mediate if all parties, being aware of the relationship, are agreeable to proceeding.

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Mediators Are Critical Thinkers Too!

Athough this Critical Thinking for Managers: A Manifesto article appearing on Change This is geared toward managers, it is full of great ideas for mediators to learn how to be what we do [Huh?!?] – think critically!

Take a look, I’ll think you’ll enjoy it! It’s a PDF download.

To email me, click Perry S. Itkin.

Clarence Darrow And Mediation

Almost 70 years ago, in May, 1936, Clarence Darrow wrote an article for Esquire Magazine entitled How to Pick a Jury.

He concluded with:

“When lawyers and courts, and laymen, accept the scientific theory which the physicians forced upon the world long years ago, then men will examine each so-called delinquency until they discover its cause, and then learn how to remove the cause. This requires sympathy, humanity, love of one’s fellow-man, and a strong faith in the power of knowledge and experience to conquer the maladies of men. The forum of the lawyers may then grow smaller, the courthouse may lose its spell, but the world will profit a thousand fold by a kindlier and more understanding relation toward all humankind.”

After reading the article, don’t you think he was actually making an argument in favor of mediation?

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Structured Settlements – Tell Me More!

Here’s an incredibly helpful, easy to understand article [downloaded as a PDF file] from Bloomberg Wealth Manager which objectively reviews and explains structured settlements. Well worth [pun intended!] reading.

To email me, click Perry S. Itkin.

Intervention In Mediation – Is It Appropriate?

According to this article in Keynoter, a non-party in pending litigation has filed a motion with the trial judge to intervene in a mediation conference involving a property owners’ association which is suing the City of Key West. The reason for the request is that the “intervenors” are concerned that their interests regarding a new traffic plan may be overlooked in the process.

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.320, Nonparticipating Persons states that “[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.”

After you read the article, think about whether this rule would adequately address the concerns of the “intervenors”. Remember, during training, one of the Mediation Process and Techniques learning objectives was to “[i]dentify individuals who are entitled to participate in the mediation conference as well as those non-parties who may need to be present. . . .”

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Florida Supreme Court’s New Rules Regulating The Florida Bar Impacts Mediators And Other Third-Party Neutrals!

In its opinion issued today, the Florida Supreme Court in In Re: Amendments to the Rules Regulating the Florida Bar, Case Number SC04-2246 [Fla. 2006], adopted revisions to, as well as completely new, rules which, among other things, specifically impact lawyers acting as mediators or as other types of third-party neutrals. Specifically, take a look at the amendments to Rule 4-1.12 Former Judge Or Arbitrator, Mediator Or Other Third-Party Neutral [pages 62-63] and a brand new rule, Rule 4-2.4 Lawyer Serving As Third-Party Neutral [pages 84-85].

Rule 4-2.4 Lawyer Serving As Third-Party Neutral provides:

(a) A lawyer serves as a third-party neutral when the lawyer assists 2 or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

So, what additional language will you be including in your mediation confirmation [or engagement] letter? You do use one, right?

Also, the Comments [which are very interesting] to each of the above rules specifically state that “[a] Florida Bar member who is a certified mediator is governed by the applicable law and rules relating to certified mediators”. [Emphasis added.] This blends nicely with Florida Rules for Certified and Court-Appointed Mediators, Rule 10.650 Concurrent Standards:

“Other ethical standards to which a mediator may be professionally bound are not abrogated by these rules. In the course of performing mediation services, however, these rules prevail over any conflicting ethical standards to which a mediator may otherwise be bound.”

All to say, this opinion is a must read!

To email me, click Perry S. Itkin.

“Get Involved And Just Enforce It!”

In the Second District Court of Appeal opinion in Raho of Pass-A-Grille, Inc. v. Pass-A-Grille Beach Motel, Inc., 2006 Fla. App. LEXIS 3976 [Fla. 2nd DCA 2006], an agreement was reached in mediation and it was memorialized in a written mediation agreement [Good move!] which was signed by the parties and their legal counsel [Another good move!] as well as by the mediator [Why? What did that add? Was this a good move? Whose agreement is it anyway?]. Thereafter, a consent order adopting the mediation agreement was signed and rendered by the trial court. Subsequently, various disputes arose between the parties concerning performance under the mediation agreement, and both parties filed motions to enforce the agreement.

Rather than enforcing the various provisions of the agreement, after an evidentiary hearing, the trial court concluded that the mediation agreement did not constitute a “real meeting of the minds” of the parties and upon that basis invalidated the agreement in its entirety.

Not so fast held the appellate court. “Although the mediation agreement was ambiguous in some respects, the parties agreed upon the essential terms and intended the mediation agreement to be binding upon them.” It was incumbent upon the trial court to resolve any ambiguities.

What could the mediator have done differently during the agreement drafting phase of the mediation conference? As always, the devil is in the details!

To email me, click Perry S. Itkin.

“What Conflict? I’m Impartial!”

Although this is an arbitration case [and it’s a long one] involving a claim of evident partiality by the chief arbitrator, RDC Golf of Florida I, Inc., et al. v. George P. Apostolicas, 2006 Fla. App. LEXIS 3696 [Fla. 5th DCA 2006], gives mediators some insight into the objective standard built into Florida Rules for Certified and Court-Appointed Mediators, Rule 10.330, Impartiality:

(a) Generally. A mediator shall maintain impartiality throughout the mediation process. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual.

(b) Withdrawal for Partiality. A mediator shall withdraw from mediation if the mediator is no longer impartial. [The objective standard with emphasis added.]

and the connection to

Rule 10.340, 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.

(b) Burden of Disclosure. The burden of disclosure of any potential conflict of interest rests on the mediator. Disclosure shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest.

(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.

The fundamental question is would a reasonable person conclude that the undisclosed circumstances would tend to bias the judgment [substitute “conduct”] of a neutral arbitrator [substitute “mediator”].

Since impartiality is the number one grievance filed against Florida mediators, this case gives us something to think about – don’t you think?

To email me, click Perry S. Itkin.

Perceptions Can Equal Misconceptions And Vice Versa

According to this article in Darwin, misconceptions about ourselves and others can be harmful – but, you knew that! What’s interesting about the article, though, are the two charts capturing potential “emotional ignorance”. There’s something of value to “think” about during your next mediation! Now, I’ll wonder what “they’re” thinking about me as I’m thinking about “them”. Hmmm!!!!

To email me, click Perry S. Itkin.

Don't Forget “Florida Mediator” By Email!

Say, remember you can subscribe [for free] to Florida Mediator and receive it via email. Just scroll down a little and in the right column is an email address box. Fill it in, click on “Subscribe me” [it really is free!] and you will receive a confirming email to verify that it was actually you who is requesting the subscription. Just thought I would point this out to you!

Perry

Mediating With Detective Vic Mackey

You know, Detective Vic Mackey on The Shield. OK, not really him but how about mediation of citizen complaints against police officers. Last year the City of Seattle initiated a mediation program for that precise purpose as reported in this news advisory. It is administered by the Office of Professional Accountability within the Seattle Police Department. According to this article in the Seattle Post-Intelligencer the 7 month young program is off to a slow start. Even so, it’s working! Like good wine and good olive oil, it takes time to mature. Continue with your fine efforts!

To email me, click Perry S. Itkin.

“Now That I’m Retired, I Have Time To Meditate!”

Wait a minute – I actually mis-titled that on purpose to see if you were paying attention and – you were! Excellent! According to this article in The Gainesville Sun, several retired Circuit Court judges have opened The Resolution Center to provide a range of alternative dispute resolution services to supplement the judicial system and to assist the community in resolving neighborhood disputes. Best wishes for much success!

To email me, click Perry S. Itkin.

“So, What Goodies Do You Have To Offer?”

Here’s an interesting post on Legal Underground by a first year litigation associate [Unnamed Associate] on their first attendance at mediation. The
comments are fun too!

What do you offer mediation participants?

To email me, click Perry S. Itkin.

If It’s In Black And White, It Must Be . . . Gray!

Although the main issue in Daniel v. Daniel, 2006 Fla. App. LEXIS 3321[Fla. 4th DCA 2006] was whether the trial court lawfully ordered the husband to file a financial affidavit in this non-simplified dissolution of marriage action [the answer is yes], the Fourth District Court of Appeal’s recitation of the mediation facts teaches us that which we already know – the rules must be followed!

The mediation agreement provided that it is “intended to be a full, final and binding settlement of all issues” in the case and that there had “been full and complete disclosure of all marital assets and liabilities.”

The day after the court entered an order approving the mediation agreement, the Wife filed a motion to set the agreement aside claiming, among other things, that there had been no “full and frank disclosure” of the assets because the Husband had not filed a financial affidavit. In a second motion to set aside the mediation agreement the Wife alleged that the mediation left her “physically and emotionally exhausted” and that a financial affidavit was mandatory because the mediation agreement contemplated “permanent financial relief.”

Context is important. Florida Family Law Rules of Procedure, Rule 12.285(a)(1) requires the filing of a financial affidavit, a “requirement [that] cannot be waived by the parties.”

All to say, just because the mediation agreement recites that there was full disclosure, in the absence of the filing of a financial affidavit what appears to be black and white is, well – gray! Be careful in drafting the mediation agreement. Mediators have an ethical obligation to the parties in “assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(a), Self-Determination, Decision-making, and further, “[a] mediator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting a mediation,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(c), Misrepresentation prohibited.

To email me, click Perry S. Itkin.

You’re A Mediator – Are You A Mind Reader Too?

Of course you are! Among the learning objectives in your training program are to identify and demonstrate appropriate non-verbal communication and to develop an awareness that people differ in how they make decisions, how they process information, and how they communicate.

According to this article [which contains a couple of interesting exercises] in CIO, accurately interpreting the meanings of nonverbal communications, especially facial expressions, is a skill that can make you more effective in your leadership role and then you can decide whether and how to act on the information you obtain just from reading faces.

Imagine that!

To email me, click Perry S. Itkin.

Mediator Testifies As To Party Capacity!

The Tennessee case of McMahan v. McMahan, 2005 Tenn. App. LEXIS 756 (Tenn. App. 2005) is very instructive for mediators on how a mediator might testify as to party capacity without violating confidentiality. There’s also much more of value on other points in the opinion.

The Husband moved to enforce a handwritten mediation agreement which the Wife and Husband and their counsel signed or initialed, when the Wife attempted to repudiate the longhand agreement, arguing that it was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement.

The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The appellate court found that the mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation. The trial court then enforced the agreement and this was affirmed on appeal.

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310 (d), Self-Determination, Postponement or Cancellation provides that “If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.”

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

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.

[Emphasis added.]

While we’re to be non-judgmental as between the parties, aren’t mediators making “judgment calls” all the time? Take a look at how the mediator was permitted to testify and reconcile the testimony with the above rules.

To email me, click Perry S. Itkin.

The Need For Tweaking Can Be Fatal!

The case settled – no it didn’t; yes it did; no; yes; etc.

All mediators should read the New Jersey opinion Lehr v. Afflitto, 2006 N.J. Super. LEXIS 8 (N.J. App. 2006). It’s a long one, full of good lessons on a variety of topics [i.e. mediator’s opening statement, mediator responsibilities to the court, confidentiality and waiver, party remorse, clarity of communication, right to attorney review of agreements, plus more] and well worth reading!

The divorcing couple was ordered to mediation which occurred over two sessions and resulted in a memorandum of understanding [MOU] written by the mediator, who acknowledged “tweaking” was necessary on several issues. The plaintiff represented to the court that the matter was completely settled in mediation. Notwithstanding the fact that everyone agreed that the parties never created nor signed a property settlement agreement, the court used the mediator’s MOU as proof that the divorce was resolved and entered judgment. The defendant appealed.

The Appeals Court held that admission of the mediator’s MOU was error since the parties never waived their right for the mediation to remain confidential. The Appeals Court also held that there was no settlement because certain financial issues were left unresolved, showing a lacking of a final agreement. The mediator did not make a report to the court as required by the court order.

The appellate court viewed the trial judge’s taking testimony from the mediator with disappointment and said that “confidentiality of the mediation process is a matter of great public and systemic importance.” The court identified several bases for confidentiality in mediation: terms in the court order to mediate; the mediator’s oral statements to the parties; applicable court rules; and principles of the Uniform Mediation Act which the court stated was an “appropriate analytical framework” even though the UMA was not in force during the time in question.

So, after reading the opinion, how will you conduct your next mediation?

To email me, click Perry S. Itkin.