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.