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.”

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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.

Challenges Of “The Profession”

“The Profession” referred to by former Florida Supreme Court Justice Major Harding is the legal profession. In his keynote address at the General Assembly at the Florida Bar’s Annual Convention in Boca Raton last month he identified several challenges and what lawyer’s could do to meet them. His important commentary has equal applicability to the mediation profession as well! As you read this article in the Florida Bar News, think about the points he makes in the context of mediation.

Along similar lines, is this thank you editorial in The Daily Commercial from Judge Donna Miller to Lake County’s County Court volunteer mediators who clearly are mindful of Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.690(a), Advancement of Mediation, Pro Bono Service which provides:

Mediators have a responsibility to provide competent services to persons seeking their assistance, including those unable to pay for services. A mediator should provide mediation services pro bono or at a reduced rate of compensation whenever appropriate.

How about you?!?

To email me, click Perry S. Itkin.

Who’s Sorry Now?

Can you hear the music? Okay, maybe this will help – the song Who’s Sorry Now? was written in 1923 long before it became a hit for Connie Francis and, believe it or not, was sung by the Marx Brothers in their movie A Night In Casablanca! What the song had to do with the movie is anyone’s guess and what all of this has to do with mediation, well . . . .

I know – you’ve already figured it out – the power of an apology! Excellent! The concept of “full disclosure/early offer” as a policy for settling medical malpractice cases has proven effective according to this article in The National Law Journal. The key to the policy lies in the open exchange of information, particularly between experienced counsel, that enables the early settlement of meritorious claims.

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My Mouth Is Moving But My Body Is Doing Most Of The Talking!

Studies have shown that the first impression is based 7 percent on what you say, 38 percent on the tone of your voice, and 55 percent on your body language according to this article by Judith Early in Lawcrossing. Although the article focuses on job interviews, it provides a good explanation of how some basic body language can be interpreted and excellent tips mediators can use to project confidence. Take a look!

Have a nice weekend!

To email me, click Perry S. Itkin.

It’s Not Clear And I’m Not A Party – Why Am I In Contempt?

In Tsokos, et al. v. Sunset Cove Investments, Inc., 2006 Fla. App. LEXIS 11806 [Fla. 2nd DCA 2006] appellants petitioned the Second District Court of Appeal for a writ of prohibition quashing an order to show cause why they should not be held in indirect criminal contempt for their willful disobedience of, and interference with, the final judgment in a lawsuit to which they were not parties. The final judgment incorporated all the provisions of a mediated settlement agreement and the trial court retained jurisdiction to enforce them. Because the final judgment did not proscribe the conduct forming the basis of the order to show cause, the appellate court granted the petition and ordered that no further proceedings be held on the order to show cause.

The final judgment did not expressly prohibit [and apparently neither did the mediated settlement agreement – what’s the lesson here?] a third party [the appellant in this case] from purchasing the real property which was the subject of the litigation after the closing date incorporated into the final judgment.

To email me, click Perry S. Itkin.

Unconscious Mediation!

Well, not really but it could have helped where a man in eastern India uttered the Urdu word for divorce [“Talaq”] three times in his sleep thereby accidentally divorcing his wife according to the religious leaders in West Bengal state as reported in this Associated Press article.

Does this give “no fault divorce” new meaning? Not so fast!

In an earlier post I noted that the High Court in Kerala has said that under Muslim law, mediation should be undertaken before using the Talaq option in divorce. Hmmm! What if the man first had a dream about family mediation with his wife and then, in the same dream, gave “Talaq?” Would the “divorce” then be valid? What do you think [or am I just ‘dreaming’ – sorry, I couldn’t resist]?

To email me, click Perry S. Itkin.

MEAC Opinion 2006-002 – Now Online!

Here’s a summary of MEAC Opinion 2006-002 which provides a succinct analysis of the importance of party self-determination and drafting the agreement:

Mediation of a small claims case resulted in impasse. Thereafter, the County Court judge instructed the parties on trial procedures and how s/he was likely to rule in an effort to urge them to settle. The judge then “suggests” that the parties return to a “second” mediation. The mediator in the “second” mediation must carefully monitor the parties’ participation in the mediation to ascertain their ability to exercise self-determination and must be prepared to terminate the mediation if any party is unable or unwilling to participate meaningfully in the process. In the context of small claims mediation, where the parties may not be familiar with the traditional court process and may be intimidated by the proceedings, a mediator is not relieved of ethical responsibilities by writing the “agreement” up as a “scrivener”.

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

The Committee Notes to that Rule provide, in part:

Florida Rule of Civil Procedure 1.730(b), Florida Rule of Juvenile Procedure 8.290(o), and Florida Family Law Rule of Procedure 12.740(f) require that any mediated agreement be reduced to writing. Mediators have an obligation to ensure these rules are complied with, but are not required to write the agreement themselves.

So, since context is important, do you think MEAC would reach a similar conclusion if the parties were represented by counsel in any type of mediation, whether it’s small claims, civil county court, circuit civil, family or dependency? What if one [or both] party is pro se? What if . . . ? Keep thinking about this!

To email me, click Perry S. Itkin.

Albert Einstein – Mediator!

Well, not really; although he could have been. You see, Albert Einstein had a formula for success in life which demonstrates the importance of effective listening in communication. The formula is a=x+y+z.

a=success
x=work
y=play

When asked what “z” was, Einstein mischievously remarked “That, my dear sir, is ‘keeping your mouth shut.’” All to say, knowing when to be quiet is as important in knowing what your mind should be doing when your mouth is “shut” – listening critically.

Since most of effective communication involves listening, determine your listening quotient by taking this test to learn if you need to become a better listener.

If you find you need some “listening help”, take a look at these top ten tips for becoming a better listener from Coachville or these Strategic Listening tips from Witt Communications.

To email me, click Perry S. Itkin.

Back To Basics!

The First District Court of Appeal reminds us, in Hale v. Shear Express, Inc., 2006 Fla. App. LEXIS 10056 [Fla. 1st DCA 2006], that to be enforceable, a settlement agreement must reflect assent by the parties to all essential terms; if any remain open, subject to future negotiation, there can be no enforceable contract. But, you knew that – right?!?

You’ve heard it before – “We’ll prepare and exchange releases later.” Uh oh! Now what?

This isn’t the first time the First District Court of Appeal called this to our attention – see my earlier post on the issue.

To email me, click Perry S. Itkin.

It’s Still Just A Duck – Not Mediation!

In an earlier post I noted that some ADR processes are called mediation when, in fact and practice, they are not mediation at all! So, what on earth is “binding mediation?”

In the California case of Lindsay v. Lewandowski, 2006 Cal. App. LEXIS 821 [Cal.App. 4th 2006] the court explored the differences between mediation and arbitration and “binding mediation”. In the case on appeal, the parties reached a mediated settlement on all but two terms. The payment terms were left up in the air and the parties also agreed “in the event of a dispute as to the terms of the settlement the parties agree to return to the mediator for final resolution by . . . .” Here is where the communication broke down. One version said binding arbitration, but had a line through it, and was replaced by the word “mediation.”

Here’s how the mediator described the procedure he intended to use to resolve the parties’ disagreement [this was not a good mediator move] over the payment terms of the settlement he had mediated: “[T]he parties have agreed in advance that in the event the parties fail to agree, I then decide these terms and conditions, typically by asking the parties to each submit to me their final offers, accompanied by their oral argument as to why I should select their version over all others. I then select as the final binding provision the term or terms of either one party or the other.” [Sounds like arbitration to me – baseball arbitration, actually!]

There are significant problems with the concept of “binding mediation.” Among them are:

What rules apply – the arbitration rules, the court-ordered mediation rules, the mediation confidentiality rules, or some mix?

If only some rules, how is one to chose?

Should the trial court take evidence on the parties’ intent or understanding in each case?

Three justices on the Court of Appeal were flabbergasted, and one of the concurring justices called the term “binding mediation” oxymoronic [I agree!].

All to say, call the process what it really is – arbitration; it is not mediation, just a duck! [You know if it looks, walks and quacks like a duck - it’s a duck!]

Please read and re-read this excellent opinion. How would you, as the mediator, have handled the parties’ disagreement?

To email me, click Perry S. Itkin.

Places Of Worship, Public Policy And Mediation

Along the east coast of the United States the locations of places of worship are being mediated - one in Boston, Massachusetts [according to this article in The Boston Globe] and one in Hollywood, Florida [according to this article in The Miami Herald]. In these two instances all participants agree that direct communication between the parties works best and that court was not the place to resolve the disputes. "Fish bowl" mediation has its benefits! The common theme is that once the foundation of understanding is established, options can be created and resolution achieved [buttressed by some stern encouragement, i.e. a trial commencement deadline, from a judge]. Imagine that!

To email me, click Perry S. Itkin.

They Said What?!?

The Florida Supreme Court in In re: Petition To Adopt Florida Rules For Certification And Regulation Of Court Interpreters and Florida Rule Of Judicial Administration 2.073, 2006 Fla. LEXIS 1394 [Fla. 2006] adopted Florida Rules for Certification and Regulation of Court Interpreters and a new Florida Rule of Judicial Administration, Rule 2.073, Appointment of Interpreters for Non-English-Speaking Persons, in response to the recent enactment of chapter 2006-253, Laws of Florida.

So, what does this have to do with mediation? Nothing, exactly and yet . . . .

One of the fundamental learning objectives in mediation training programs is to “[i]dentify techniques for mediating cases where there is a language barrier or when a translator participates in the mediation session.” I interpret [pun intended – sorry!] the word “translator” here to mean interpreter. These new rules give mediators valuable insight into what professional conduct is expected of a certified court interpreter and, hence, what we can expect of them if they participate in mediation.

Additionally, Part IV, Discipline, in these new rules delineates the conditions under which disciplinary action may be taken against a certified court interpreter. The discipline may take the form of suspension or revocation of certification. Rules 14.410-14.460 set forth a detailed disciplinary process based loosely on those applicable to mediators. See Florida Rules for Certified and Court-Appointed Mediators 10.810-10.880. Hmmm, how about that?!?

Since we have the benefit of such a wonderfully diverse cultural population here, I thought this would be an appropriate post for the 4th of July! Enjoy the holiday and stay safe!

To email me, click Perry S. Itkin.