Mediating Over Troubled Waters

My apologies to Simon and Garfunkel and their “Bridge Over Troubled Water,” the last album they did together. Did you know that Florida actually has a statute, F.S. 373.71, known and cited as the “Apalachicola-Chattahoochee-Flint River Basin Compact”, or “ACF Compact” or “Compact” for short? This Compact among the states of Alabama, Florida and Georgia and the United States of America has been entered into for the purposes of promoting interstate comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACF, engaging in water planning, and developing and sharing common data bases. Seems esoteric, doesn’t it?

Not so fast! According to this article in the Atlanta Journal-Constitution, the Governor of Georgia has asked the Governors of Florida and Alabama for a personal meeting [sounds like mediation to me] to resolve a 16 year tri-state water war. Georgia’s Governor believes there is too much at stake to let the courts decide! How about that?!?

To email me, click Perry S. Itkin.

Ask “What If?” To Avoid Latent Ambiguity

This is an important question for mediators to ask as is demonstrated by the Fourth District Court of Appeal in Kirsch v. Kirsch, Case No. 4D05-4170 [Fla. 4th DCA 2006]. This case addresses trial court treatment of an ambiguous provision in a mediation agreement.

The agreement expressly provided that the parties would “stipulate to the recommendations of Canoy Roberson,” the children’s therapist regarding reunification of the father with the children and that the mother would retain sole parental responsibility until such time as the named therapist recommended shared parental responsibility. This therapist was the only therapist referenced by name in the agreement; however, the agreement did provide that the mother could take the children to an “additional therapist to address concerns other than those being addressed by” Roberson and that the father would be responsible for half of the uninsured costs of therapy “between the children and [Roberson] or any mutually acceptable therapist.” After the mediation agreement was ratified by the court, the named therapist resigned. The trial court determined that the detailed language of the agreement was unambiguous and the appellate court disagreed finding that the mediation agreement contained a latent ambiguity because it does not address the eventuality of the named therapist’s unavailability.

The lesson here is, “What if . . . ?” Say, how about the parties building in a dispute resolution procedure [i.e. return to mediation before litigation, although not to a specifically named mediator] not only about performance or non-performance under a mediation agreement but also about interpretation of its terms? Just a thought!

To email me, click Perry S. Itkin.

What It Takes To Be A Good Mentor!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.690(b), Advancement of Mediation, New Mediator Training, provides that “[a]n experienced mediator should cooperate in training new mediators, including serving as a mentor.” Assuming we all have served as a mediation mentor at one time or another [or does this only happen on my planet?!?], did you ever wonder what it takes to be a good mentor?

Here’s a succinct article from the Ewing Marion Kauffman Foundation to help each one of us demonstrate nobility of character by revealing the best of ourselves – the essence of being a good mentor.

To email me, click Perry S. Itkin.

Florida’s 15th Annual Conference For Mediators And Arbitrators

All y’all [the plural of y’all] are invited to register for this excellent conference which has something for ADR professionals everywhere! The schedule is:

Thursday, August 24, 2006
Supreme Court Arbitration Training (10 am - 5 pm)
Early Conference Registration & Welcome Reception (5 pm - 7 pm)

Friday, August 25, 2006
Annual DRC Conference (8:30 am - 5 pm)

Saturday, August 26, 2006
Conference continued (8 am - 11:45 am)

Here are the conference brochure and the registration form.

I hope to see you in August at the Dispute Resolution Center conference in Orlando!

To email me, click Perry S. Itkin.

New Parental Relocation With A Child Statute Impacts Family Mediation!

Yesterday, Florida’s Governor approved Senate Bill 2184 relating to parental relocation with a child. It becomes Chapter 2006-245, Florida Statutes and has an effective date of October 1, 2006. The law creates F.S. 61.13001 within Florida’s Dissolution of Marriage statute. Among other things, it provides factors to be used to determine contested relocation, provides for notification of certain persons of intent to relocate a child and provides procedures therefor. Additionally, it requires that certain information be provided on a Notice of Intent to Relocate.

F.S. 61.13001(1) provides definitions [a cornucopia of thought provoking information] while F.S. 61.13001(2) establishes the criteria parents, who sign a written agreement to relocate a child’s principal residence, must satisfy in order to meet the requirements of the new law. As you read the statute, pay particular attention to the terminology.

To email me, click Perry S. Itkin.

Mediation Is Not A Bulletproof Vest!

According to this article in the Reno Gazette-Journal, [and these additional stories] judges in the Washoe County Courthouse are requesting tighter security after the sniper shooting of one of the family court judges at the Courthouse. One of the judges talked about ways violence can be deterred before the dispute reaches the courtroom through mediation and settlement sessions. Just how will mediation accomplish this? Private mediators don’t have metal detectors or body scanning wands. As a mediator, would you try talking someone out of shooting or stabbing you, or would you rather sit near the conference room door?!? [I’m serious here.]

Remember this post about the husband who stabbed his wife to death following a private mediation session.

Yes, Florida’s Rules for Certified and Court-Appointed Mediators addresses safety.

For example, Rule 10.420(b) (5), Conduct of Mediation, Adjournment or Termination provides that “A mediator shall terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.” [Emphasis added.] There’s no wiggle room here – stop talking.

All to say, please be careful out there – mediation is not a bulletproof vest!

To email me, click Perry S. Itkin.

Who Can Be Present During Mediation?

Among the mediation training learning objectives is to identify individuals who are entitled to participate in the mediation conference as well as those non-parties who may need to be present, including legal parties as well as “parties in interest”, i.e. best friends, family members, lien holders, guardians ad litem, and pets. Okay, not really pets! Service animals yes [remember the the Americans With Disabilities Act of 1990]. But pets – nahhh! Okay, maybe – depending on the circumstances. In any event, since pets are not permitted in the courtroom according to this article from the Associated Press reported at Law.com, do you think they should be allowed to “participate” in the mediation conference? [I actually had that happen once!]

To email me, click Perry S. Itkin.

“What Do You Mean Standing To Mediate?”

Put differently, mediation is a challenge. [You knew that, right?!?] Having said that, the mediation challenge has a different meaning than the one you’re thinking about in the context of mobile homeowners’ disputes.

Initiation of mediation and initiation of litigation are both “challenges” under F.S. 723.037(1). In order for a mobile homeowner’s association to have standing to mediate and standing to sue [i.e. both are ‘challenges’], it must have the written agreement from a majority of affected homeowners according to Sun Valley Homeowners, Inc. v. American Land Lease, Inc., 927 So.2d 259 [Fla. 2nd DCA 2006] from the Second District Court of Appeal.

To email me, click Perry S. Itkin.

Does Mediation Have A Dark Side?

Not everyone is enamored with mediation as this article from the Traverse City Record-Eagle points out. So, what do you think of the opinion of this business editor on mediation in zoning related litigation?

But [and it may be an effective “but”, if you know what I mean], there is someone who believes mediation should be as accessible as fast food according to this article in the Sun-Sentinel!

Now what do you think of the opinion in the first article?

To email me, click Perry S. Itkin.

Do Judges Read “Florida Mediator”?

In a post on April 27, 2006 I addressed the technique of if all else fails try rock-paper-scissors. Well, a U.S. District Court Judge in the Middle District of Florida yesterday has entered just such an order. Imagine that! You can read a little more about the event in this article from CNN.

To email me, click Perry S. Itkin.

Minimizing Mediation Risks In Domestic Violence Cases

According to this article in the Poughkeepsie Journal, the collaborative efforts of the mediation and domestic violence communites in Dutchess County, New York established a protocol which departs from the traditional manner in which mediation is practiced. Rather than eliminating mediation as an option [which has the net effect of one more system telling the victim what they can and cannot do - i.e. dictating to them], special policies and procedures have been developed to empower the victim. This appears to be a viable program - keep up the good work!

To email me, click Perry S. Itkin.

“But I Have A Good Case; Why Should I Settle?”

It's not always the notion that a party has a “good case” or even a “great case” - is it? Even with a “great case” parties settle for non-litigation outcome reasons [is this another way of saying “risk”?] as is demonstrated in this article from the ContraCosta Times involving a nuclear scientist once identified in the news media as the target of a government spying investigation. The defendants were the U.S. government and five media organizations all of whom contributed to the settlement. Take a look at the motivations behind the media’s “exceptionally” unusual $750,000.00 payment and the government’s payment of $895,000.00. The multi-party media defendants contributed disproportionately to their total payment [frequently a common multi-party defendant scenario] and the scientist will not personally receive any of the government’s payment. How come?

Well, you'll need to read this interesting article to gather the lateral thinking behind the settlement!

To email me, click Perry S. Itkin.