Tuesday, November 20, 2007

Florida Supreme Court Removes Bar Membership Requirement for Circuit Court Mediators!

Wow!!! On November 15th the Florida Supreme Court issued In Re: Petition Of The Alternative Dispute Resolution Rules And Policy Committee On Amendments To Florida Rules For Certified And Court-Appointed Mediators, 2007 Fla. LEXIS 2172 [Fla. 2007] in which it amended the Florida Rules for Certified and Court-Appointed Mediators to provide a true point-based mediator certification system by removing The Florida Bar membership requirement for certified Circuit Court Mediators!!!

What a marvelous opportunity for those without legal training, as well as for those who are members of the bar in jurisdictions other than Florida, to become a certified Circuit Court Mediator!

The Court also recognized that there may be situations where one party to a Circuit Court mediation may object to the appointment of a mediator who lacks legal training and if that occurs, the trial court must appoint a mediator who is also a member of The Florida Bar. Florida Rule of Civil Procedure 1.720(f)(2) was amended to reflect this requirement.

Please take the time to read this incredibly important opinion – you’ll be glad you did!!!

Also, if you have any questions please get in touch with me.

To email me, click Perry S. Itkin.

Sunday, September 16, 2007

Mediation Math: Pressure To Go To Mediation + Ineffective Assistance of Counsel = Zero!

How about that?!? Take a look at D.B. v. W.J.P., 32 Fla. L. Weekly D 1737 [Fla. 5th DCA 2007]. This court ordered dependency mediation resulted in an agreement in which the paternal grandmother was given temporary custody of her grandchild. Before the court entered its order approving the agreement, the biological mother objected arguing [1] she was pressured into going to mediation and [2] that she had received incompetent legal advice.

The Fifth District Court of Appeal reversed the trial judge’s order awarding custody to the grandmother because, among other reasons, the biological mother withdrew her consent to the agreement prior to the entry of the court order and she was entitled to a hearing. There’s more to this opinion which is worthwhile reading – i.e., collateral attacks on mediated settlement agreements [although it’s addressed in a footnote] as well as the rights of biological parents versus grandparents.

To email me, click Perry S. Itkin.

Tuesday, September 11, 2007

Seriously – We Need Your Help With This!

The Florida Supreme Court’s Committee on Alternative Dispute Resolution Rules and Policy is considering some options to address the issue created by the adoption of Florida’s “Mediation Confidentiality and Privilege Act”, sections 44.401- 44.406, of Chapter 44, Florida Statutes, in relation to the reporting of a failure of a party to appear pursuant to court rules (See Rule 1.720(b), Florida Rules of Civil Procedure; Rule 8.290(l), Florida Rules of Juvenile Procedure [PDF only]; and Rule 12.741, Florida Family Law Rules of Procedure).

The problem: Party representatives are showing up at court-ordered mediations without the authority to settle the case as required by the Florida Rules of Procedure (and Mediation Referral Orders entered by the presiding judge). Procedures to sanction or deter this behavior are frustrated by the “Florida Mediation Confidentiality and Privilege Act,” which prohibits both the mediator and mediation participants from revealing mediation communications. The fact that a party has appeared at the mediation without adequate authority cannot come to the attention of the court. Take a look at MEAC 2006-003.

Here’s where you can help: The ADR Rules and Policy Committee have come up with two possible alternatives to address this issue and would like your comments. Please follow this link to view two proposals and please provide your input.

To email me, click Perry S. Itkin.

The “Emperor’s New Clothes” and Mediation!

Guido and Luigi Farabutto were the world’s first pre-suit mediators! Who, you ask, are they? These men were the tailors [swindlers, actually] made famous by Hans Christian Anderson and who made the Emperor’s “new clothes” [pre-suit – get it?!?] Okaaaaaaaay!?!

Well, the Florida Legislature actually gave us some good ideas in the newly amended mandatory pre-suit mediation protocol for community association – parcel owner disputes, F.S. 720.311.

You might find useful information to include in your confirmation letter [you do use one, don’t you?!?] such as mediation advance deposits [excellent choice!] and preparation time. Anyway, these are some things to think about.

To email me, click Perry S. Itkin.

Thursday, August 30, 2007

The Beatles: Ethical Mediators – “You Can’t Do That!”

The year was 1964 and The Beatles recorded You Can’t Do That as the B-side of the single Can’t Buy Me Love – you remember both songs, right?!? Seems just like Yesterday – sorry, I couldn’t resist!

Anyway, have you ever been presented with the situation in mediation where one or both of the parties have brought [usually, unannounced] a non-party to the table – of course you have! The party who brought this person says “yes they’ll stay” and the other party says “no” – or, to put it another way, “you say yes, I say no” or vice versa, “you say goodbye and I say hello.” Can’t you just hear it – Hello Goodbye [thank you, Beatles]!

Okay, back to 2007! What about the situation where each party brought a non-party with them and both parties not only agree but also insist that both of the non-parties can attend the mediation?

Is it permissible for a mediator to dictate, over the parties’ objections, who attends mediation? Think like The Beatles!

Is it appropriate for the mediator to instruct non-parties they can not participate in mediation because the mediation is confidential? Think like The Beatles!

Is it a violation of confidentiality for a mediator to direct a party or parties that s/he can discuss mediation communications with someone who does not attend the mediation without consent of all parties? Think like MEAC!

What if the court order to mediate limits attendance to the named parties only? Think . . . .

Actually, you’ll find instructive answers to the above questions in two recent MEAC Opinions –2006-007 and 2007-2004. Take a look, they are very worthwhile!

Have a happy and safe Labor Day Weekend!

To email me, click Perry S. Itkin.

Sunday, July 01, 2007

Concetta Rosa Maria Franconero – Mediator!

Who?!? Okay, okay! How about this: Connie Francis – Mediator! You remember her 1958 hit "Who’s Sorry Now?" [Please say yes!] The song actually was featured in the Marx Brothers’ film A Night in Casablanca (1946) and has become generally associated with her due to the massive worldwide popularity of her version.

Anyway, here’s a terrific article entitled “The Art and Power of the Apology.” It appears in the June, 2007 issue of The Washington Lawyer. In it Sarah Kellogg examines the mounting evidence showing that candidness coupled with apology can reduce lawsuits.

Among the topics covered are:

What Makes a Good Apology?
Corporate Apologies
Apologies in the Health Care Arena
Dispute Resolution in the Workplace
Wariness of the Legal Community

It’s worth reading!

To email me, click Perry S. Itkin.

Thursday, May 31, 2007

Do I Or Don’t I . . .

. . . routinely attach the mediated settlement agreement in a Circuit Civil case to the report I file with the Court?


Okay, the answer is found in MEAC Opinion 2007-002 which provides, in summary, that “it would not be appropriate to routinely attach the mediated settlement agreement to a circuit civil case in light of the requirements of rule 1.730(b), Florida Rules of Civil Procedure.”

It is important to remember the following requirement from that rule:

The mediator shall report the existence of the signed or transcribed agreement to the court without comment within 10 days thereof. [Emphasis added.]

There’s more to this opinion which is worthwhile reading.

To email me, click Perry S. Itkin.

Wednesday, May 30, 2007

The Lone Ranger – Mediator!

A fiery horse with the speed of light, a cloud of dust and a hearty “Hi-Yo Silver!” The Lone Ranger rides again! Return with us now to those Thrilling Days of Yesteryear!

Remember this?!? [Please say yes!]

Okay, okay, The Lone Ranger was not a mediator – he could have been though, don’t you think? For example, he was the first to use the “silver bullet” technique often used by mediators today. According to this article in The Plain Dealer, a variation of this technique was recently used successfully.

Do you know what the silver bullet stood for? Me neither! [At least I didn’t remember - uh oh!] It was The Lone Ranger’s symbol of justice! It stood for law and order, fair play and honesty and served as a reminder to the Lone Ranger of his vows to fight for justice and never shoot to kill [i.e. get an agreement in mediation no matter what it takes]. So, don’t you think he could have been a mediator?

By the way, if you want to listen to the entire theme song, click here.

To email me, click Perry S. Itkin.

Friday, May 11, 2007

Are You Comprehensible?

One of the learning objectives in mediation training is to develop an awareness that people differ in how they make decisions, how they process information, and how they communicate.

U.S. Bankruptcy Judge Leif M. Clark (W.D. Tex.) entered an order captioned “Order Denying Motion for Incomprehensibility” when he couldn’t figure out what the defendant was requesting. As part of the authority for the order, the judge relied on the 1995 comedy “Billy Madison” starring former Saturday Night Live cast member Adam Sandler.

Mediation is based on concepts of communication and one of the roles of the mediator is to reduce obstacles to communication. All to say [pun intended], how mediators and mediation participants communicate is critical [but you knew that, right?!?].

Read the order – it will make you laugh [okay, maybe just smile] – it’s a nice way to start the weekend!

To email me, click Perry S. Itkin.

Sunday, April 15, 2007

“Where Have All The Flowers Gone?”

Nope, I’m not referring to Pete Seeger’s song with the same name and made popular by The Kingston Trio, Peter, Paul and Mary and Marlene Dietrich – what I really meant to say was [quoting from the song] “When will they ever learn?” [You remember the lyrics, right?!? Please say yes!]

According to the St. Petersburg Times in this article “Traditional divorces don’t always go to trial. Many go to mediation, where an arbitrator stays neutral while everyone else takes sides.” Go figure!!!

To email me, click Perry S. Itkin.

Saturday, April 14, 2007

“Yes, Virginia . . .”

Okay, I realize it’s a little early for Christmas, however, the Virginia Chapter of the Association for Conflict Resolution is celebrating its 10th anniversary in Fredericksburg, Virginia at its annual spring conference May 6 – 7, 2007.

Ray Lanier, President of the Association for Conflict Resolution will address “State of the Field: What are the trends and challenges in the field of conflict resolution? How is ACR doing?”

Celebrate with them and participate in valuable networking and learning opportunities.

Here’s the Conference Brochure, Registration Form, and Hotel Information.

Happy Anniversary!

To email me, click Perry S. Itkin.

Monday, April 09, 2007

“But Judge, I Really Want To Mediate!”

Coastal Systems Development, Inc. v. Bunnell Foundation, Inc., 2007 Fla. App. LEXIS 4900 [Fla. 3rd DCA 2007] involved a consolidated appeal from the trial court’s non-final order denying a motion to compel mediation, for stay pending arbitration and to strike notice for trial, as well as the trial court’s non-final order denying a motion to compel arbitration.

In this breach of contract action, Appellant moved to dismiss the complaint based on a mediation provision contained in the contract. The trial court heard Appellant’s motion to stay the proceedings pending mediation and denied it because Appellant would not provide Appellee with a copy of certain financial documents in connection with the project [under the contract the parties were to share equally in all profits]. The trial court reasoned that Appellee could not determine the profits thereby making mediation useless without Appellant’s production of the requested documents [imagine that!!].

Appellant obtained new counsel who filed another motion to compel mediation, even though the trial court previously had ruled on the issue. Guess what – denied!

The Third District Court of Appeal held that the trial court properly denied Appellant’s motion to compel mediation and to abate the action pending mediation – the motion had been previously denied. The prior denial of mediation was not an appealable order. Twice denied – twice non-appealable!

The opinion also addresses Appellant’s waiver of its right to arbitrate by actively participating in the lawsuit.

To email me, click Perry S. Itkin.

Friday, April 06, 2007

“The Other Side Is Paying For Mediation – Not Me!”

Never happened to you – right?!? What can you properly report to the court? MEAC Opinion 2006-008 advises that “The mediator may report the fact of nonpayment of mediation fees to the court.”

In MEAC Opinion 95-001, MEAC advised that “a mediator . . . is entitled to compensation at the time the services are rendered in accordance with the agreement of the parties or the Court order appointing the mediator.” In the same Opinion, MEAC said that if a mediator is not paid, “the mediator may seek payment in any lawful manner” which includes the “filing of a separate lawsuit or the filing of a motion with the presiding judge seeking payment of the mediator’s fee.”

What about confidentiality, you wonder [you did wonder about that, right?!?]. Well, according to MEAC there is no statutory confidentiality restriction on reporting that the fees were not paid since the mediator would not be relying on a “mediation communication” as defined in F.S. 44.403(1) – that is to say, the mediator would not [repeat, would not] report to the Court that the party stated s/he would not pay.

How about that?!?

By the way MEAC Opinion 2006-008 also advises that “a mediator may report to the court that a party or counsel has failed to attend a mediation if this conclusion is based on observation by the mediator and is not dependent on a “mediation communication.”

To email me, click Perry S. Itkin.

Wednesday, April 04, 2007

Settle Or Go Directly To Jail!

No – really – this actually happened! According to this article from WMBB-TV News and this article from WJHG-TV News, the creator of “Girls Gone Wild” was found in contempt by a Federal Court judge as a result of his conduct during mediation last month.

Attorneys for the Plaintiffs filed a motion asking for reimbursement of expenses they incurred while preparing for the mediation in which they say the Defendant was uncooperative. The Plaintiffs’ attorneys testified that the Defendant arrived late, barefoot, wearing a backwards ball cap and sweatpants and in the first 3 minutes of the mediation, began shouting obscenities at them. Their motion says “As the plaintiff’s attorneys were leaving, [the] threats escalated – i.e. “We will bury you and your clients!”

The judge found the Defendant in contempt of court for his actions and ordered him to either settle the case with the plaintiffs or surrender to U.S. Marshals by 5:30p.m. on a Friday evening. Later he was given an extension until Saturday at 5:00p.m. If both sides could not reach an agreement in the case by then the Defendant was to be held in the Bay County Jail until another mediation can be scheduled and completed.

All’s well that ends . . . . In today’s edition of WMBB-TV News, the Defendant was ordered to surrender at the Federal Courthouse by noon tomorrow because the judge found that the Defendant mislead the other side with an offer to settle which he later took back [imagine that!].

Among the learning objectives in mediation training is to identify appropriate techniques for handling difficult situations, e.g., a party walks out, a party makes personal attacks on another party or mediator, or a party is not really engaged in the mediation.

So, if you were the mediator in this case, what techniques would you employ?

To email me, click Perry S. Itkin.

Mediating In The Dark!

Okay, not really in the dark – but what about mediating for a very, very, very long, long session – i.e. the “marathon mediation” [start early – stay late – keep the light on for you]? Have you ever had that experience or heard an anecdote about one? Here’s a criminal case with an interesting parallel and lessons for us.

The First District Court of Appeal in Green v. State, 32 Fla. L. Weekly D 691 (Fla. 1st DCA 2007), affirmed a jury’s guilty verdict in a case where at approximately 4:00p.m. defense counsel requested that the trial be adjourned and resumed the next day so that the jury would have enough time review all the evidence. The trial judge asked the jury what they wanted to do and they decided to work into the night [sound familiar?!?]. Two jurors had to go to work the next day. Closing arguments concluded at 9:20p.m. and the jury returned its verdicts shortly after midnight.

While the general proposition is that jury trials should not continue late into the evening, the appellate court affirmed the jury’s verdict because the trial judge had asked the jurors what they wanted to do, and the court repeatedly checked their mental state to make sure they could continue with their deliberations [excellent practice for mediators to keep in mind!].

This opinion is worth reading for other practice ideas as well.

To email me, click Perry S. Itkin.

Wednesday, March 28, 2007

“It’s Clear To Me.” “Me Too.”

This case from the Third District Court of Appeal is a good illustration of a peril for mediation in not having releases drafted at the mediation conference [or at least the mediator requesting that counsel bring proposed releases to mediation for discussion].

The parties agreed to exchange general releases and other related documents as per the terms of the settlement agreement. Guess what?!? As Gomer Pyle used to say “Surprise; surprise; surprise!” – the parties were unable to agree on the language of the releases required under the settlement agreement.

Appellee filed a motion to enforce the settlement agreement, alleging that pursuant to its clear and unambiguous terms the other party was required to execute a general release containing certain language and the other party argued that the plain and unambiguous language of the settlement agreement did not require such language.

Appellant appealed the trial court’s order enforcing the agreement alleging that since the language in the settlement agreement is susceptible to more than one reasonable meaning, it is ambiguous, and consequently, the trial court erred in resolving Appellee’s motion as a matter of law without holding an evidentiary hearing to determine the intention of the parties. The appellate court agreed, reversed and remanded to the trial court for an evidentiary hearing to resolve the ambiguity based on all of the relevant evidence bearing on the issue.

Although it’s not clear from the opinion that the settlement in this case occurred in mediation, it’s important to remember that, pursuant to Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(c), Conduct of Mediation, Closure,

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.

A good mediator question to ask in this scenario would be, “What if the general releases are not exchanged?” Hmmm!?!

To email me, click Perry S. Itkin.

Tuesday, March 27, 2007

The Mediator Who Wasn’t!

Huh?!? According to the Sun-Sentinel in this article, Rachel Otto who has been arrested for impersonating a police officer also has been accused of impersonating a mediator or lawyer or both.

She has a pending court case involving allegations that she pretended to be an attorney and charged her 70 year old neighbor more than $10,000 for her “mediation” in a car crash, according to police reports.

Last June her neighbor reported to police that Otto had committed a fraud against him. He told police that a month after he was involved in a car crash, he found a note from Otto on his front door claiming that detectives had come to her door asking about him. The note urged him to call Otto because she was a lawyer and wanted to discuss what the police had told her.

A woman then called him, identifying herself as a detective, warning him he would be arrested if he did not pay money to the other party in the crash. He then called Otto, who told him she could “mediate” the case. The 70 year old gave Otto $2,000 of his own money and borrowed money from friends for a total of $10,600, to settle the case and pay Otto, according to police reports.

By the way, if you’re not sure who you are, you can take this free [really!] Enneagram test from the Enneagram Institute.

To email me, click Perry S. Itkin.

Saturday, March 24, 2007

Be Careful Of What You Don’t Ask For!

If you don’t ask . . . well, you know!

In Evanston Insurance Company v. Advanced Transportation Solutions, LLC, et al., 32 Fla. L. Weekly D 526 [Fla. 3rd DCA 2007], a personal injury action was settled at mediation between the plaintiffs and 3 different insurance carriers. All the parties signed a General Release, Hold Harmless and Indemnity Agreement in which they agreed not to litigate against each other. Then [you figured something was coming – right!] one of the insurance companies sought to recover its attorneys fees from one of the other carriers.

The Third District Court of Appeal held “tough” [only kidding – sort of!] – what they really held was that the carrier seeking contribution for attorney’s fees waived its right to do so when it entered into the Release Agreement without preserving its right to seek contribution.

Evanston had every opportunity to create such an agreement, particularly since Evanston was a participant at mediation during the negotiation and settlement of {Plaintiff’s} complaint.

There’s more to read in this short and informative opinion.

To email me, click Perry S. Itkin.

Tuesday, March 20, 2007

MEAC Opinions – Now Online By Subject Matter!

Whoa! You’re really going to like this!

Florida’s Dispute Resolution Center has now made available online, Mediator Ethics Advisory Committee [MEAC] opinion summaries [with links to all the opinions themselves] from 1994 to 2007 organized by subject matter. Here you’ll find opinions on:


Advice Opinions or Information

Business Practices


Conflicts of Interests


This is a treasure trove!

To email me, click Perry S. Itkin.

Friday, March 16, 2007

Mediation Survives!

In The Auchter Co. v. Zagloul, 2007 Fla. App. LEXIS 3292 [Fla. 1st DCA 2007] the First District Court of Appeal reversed a trial court’s order denying Appellant’s Motion to Dismiss and/or Compel Mediation and/or Arbitration and Stay Action filed in response to a complaint stating causes of action based on a standard American Institute of Architects [AIA] contract between Appellant [as the contractor] and Appellee [as the owner] to build a house. The trial court denied the motion because it determined that the mandatory mediation and arbitration provisions of the contract did not survive Appellee’s termination of the contract.

Talk about frustration – reading the ADR provisions of the contract as the trial court did would permit parties to avoid ADR simply by purporting to terminate the contract – so much for the public policy of broadly interpreting ADR contract provisions in favor of resolving controversies out of court!

The First District held that the dispute resolution provisions of the contract are intended to survive purported termination of the contract by a party [unless there is a clear intent to the contrary] and reversed and remanded the case with directions that the trial court order Appellee to proceed to mediation and, if mediation fails, to binding arbitration, as contemplated by the agreement he signed, and that it stay further court proceedings pending compliance with that order.

So, do you think the same person should be both the mediator and also the arbitrator? [Nope!]

To email me, click Perry S. Itkin.

Wednesday, March 14, 2007

More Excellent Florida ADR Reference Materials On-line!

Really – it’s true! The Florida Dispute Resolution Center has put its 2006 Resource Handbook online as well as its 2005 Compendium.

The ADR Resource Handbook contains Florida ADR Statutes, Procedural Rules: Mediation & Arbitration, Rules for Certified & Court Appointed Mediators, Rules for Court Appointed Arbitrators, Mediation Training Programs Standards & Procedures, and the current Mediator Certification Administrative Order.

The 2005 Compendium contains statistics and descriptions of court-connected ADR programs, contact information for court ADR programs, and Supreme Court ADR committees and boards.

An order form to purchase hard copies of these volumes can be found here.

To email me, click Perry S. Itkin.

Tuesday, March 13, 2007

Talented Mediators & Salt – A Commonality?

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Advice, Opinions, or Information, provides in part:

(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute. [Emphasis added.]

Talented mediators have an “optimal” level of assertiveness – that is, they are not under- or over-assertive. According to a recent study in the February issue of the Journal of Personality and Social Psychology, published by the American Psychological Association, leaders who are perceived as low or high in assertiveness are seen as less effective than those who are moderately assertive. Those who are moderately assertive have the flexibility of modifying their behavior up or down as the situation dictates [i.e., they can “duly” influence the parties without coercing them].

What does salt have to do with this? One of the researchers has described assertiveness in this way: “We say it’s like salt in a sauce: when there’s too much or too little, it’s hard to notice anything else, but when it’s just right, you notice the other flavors. No one compliments a sauce for being perfectly salted, and it’s just as unusual for a leader’s [substitute – mediator’s] perfect touch with assertiveness to attract much notice.”

How much “salt” [substitute – assertiveness] is in your mediator toolbox?

To email me, click Perry S. Itkin.

Monday, March 12, 2007

“The Judge Did What?!!?”

In Stallworth v. Phinney, 32 Fla. L. Weekly D450 [Fla. 1st DCA 2007] the trial court modified the parties’ final judgment of dissolution to order, pursuant to the parties’ agreement, that the parties’ daughter would complete her elementary education at a particular school [no problems yet]. The Appellee former husband thereafter unilaterally elected to place the daughter in a different school [uh oh!]. As you might expect, the Appellant former wife then filed an emergency motion for contempt and requested that the motion be considered at an expedited evidentiary hearing.

The trial court declined to hold the requested hearing and entered an order denying the Appellant’s motion [now there’s a problem]. The judge, after denying the former wife’s motion, directed the parties to mediate the issue, and granted the Appellee the final authority to choose a school if mediation was unsuccessful [the problem is getting bigger!].

The First District Court of Appeal reversed the trial judge and remanded the case to the trial court with directions that an evidentiary hearing be promptly held. The appellate court determined that:

In refusing to hold an evidentiary hearing, the trial court denied the former wife due process.

How about that!

To email me, click Perry S. Itkin.

Sunday, March 11, 2007

Almost There – Light At The End Of The Tunnel

An earlier post on the status of the requirements to become a Circuit Court Mediator certified by the Florida Supreme Court [Case Number SC 05-998] was entitled We’re Still Waiting!

We’re getting closer! The Court has scheduled oral argument for May 7, 2007. This is almost two years to the day the original petition was filed – May 11, 2005! You can watch the oral argument.

To email me, click Perry S. Itkin.

Saturday, March 10, 2007

Are You A “Persuasion Master?”

Huh?!? Okay, how about identifying techniques a mediator may use to assist a party in reconsidering his or her position on a particular proposal and knowing when to use various persuasion techniques?

These are among the concepts mediators utilize daily.

In order to be adept at employing persuasion strategies, we should understand the Six Laws of Persuasion as illustrated in this excellent article from Global Knowledge.

So, after reading the article, would you consider yourself to be a “Persuasion Master?”

To email me, click Perry S. Itkin.

Monday, February 05, 2007

Is There Such A Concept As “Behavior Unbecoming A Mediator?”

Well, not exactly according to MEAC Opinion 2006-004. The question posed is “Can a Florida Supreme Court Certified mediator be sanctioned for behavior “unbecoming” of a mediator when participating in a mediation as a party or an attorney?”

In summary the opinion of the Mediator Ethics Advisory Committee is:

A certified mediator is subject to a good moral character requirement and is prohibited from performing any act which would compromise the mediator’s integrity; however, there is no general prohibition regarding a mediator exhibiting behavior “unbecoming” a mediator. In addition, the actions of an attorney or a party in a mediation, cannot be judged as if they were those of a mediator.

After you read the facts submitted to MEAC, do you think the Florida Rules for Certified and Court-Appointed Mediators should be amended to include an ethical rule addressing the concept of “behavior unbecoming a mediator?” If you were the mediator in this case, how would you have addressed the situations?

To email me, click Perry S. Itkin.

Wednesday, January 03, 2007

Mediator On A Tightrope – MEAC Opinion 2006-003!

Hmmm!!! Florida Rule of Civil Procedure 1.720(b) provides in pertinent part:

Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys’ fees and other costs, against the party failing to appear. . . .[U]nless stipulated by the parties or changed by order of the court, a party is deemed to appear at a mediation conference if the following persons are physically present:

(1) The party or its representative having full authority to settle without further consultation.
(2) The party’s counsel of record, if any.
(3) 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.
[Emphasis added.]

So, what if, during the mediation process, the mediator learns that a party or representative doesn’t have “full authority” – can the mediator report that to the court? [Not so fast!] Should the mediator be able to report that to the court?

What about confidentiality and Florida Rules for Certified and Court-Appointed Mediators, Rule 10.360 and Florida’s Mediation Confidentiality and Privilege Act, F.S. 44.405 [Confidentiality; privilege; exceptions.]?!??!? Is lack of authority to settle one of the exceptions to confidentiality set forth in the Rule or statute? [Nope!]

Just what can/should the mediator report to the court? Read this interesting MEAC Opinion to figure out how to think about [after all, it is a dilemma, i.e. mediator accountability to the court Florida Rules for Certified and Court-Appointed Mediators, Rule 10.500] and how to address this situation [or not]!

Do you see any problems here? Seriously, please let me know.

To email me, click Perry S. Itkin.

Tuesday, January 02, 2007

MEAC 2005-007 Now Online!

Here’s a summary of MEAC Opinion 2005-007 which addresses the scheduling of a mediation conference, rescheduling a mediation conference, and party nonappearance:

1. If a party is requesting that the mediation be rescheduled for “good cause,” the mediation should be rescheduled to a mutually convenient time consistent with Florida Rules for Certified and Court-Appointed Mediators, Rule 10.330(a). If the party is objecting to attending mediation, the mediator cannot compel attendance, however, the party should be advised that pursuant to Florida Family Law Rules of Procedure, Rule 12.741(b)(2), the party may be subject to sanctions by the court for “nonappearance.”

2. A report to the court regarding nonappearance should not include any reason for the nonappearance.

3. A date for mediation may be set without the advance agreement of all parties, but then any party would be permitted to request that it be rescheduled.

4. A mediator may report non-appearance at a mediation if the mediator gave the non-appearing party due notice of the date and time for the mediation session and good cause was not shown for rescheduling.

Although the question raised in this Opinion was in the context of a family mediation, the lessons are applicable in other mediations. For example, take a look at Florida Rules of Civil Procedure, Rule 1.720.

This is a very interesting and informative Opinion and is well worth reading!

To email me, click Perry S. Itkin.