“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.

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.

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.

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:

Advertising/Solicitation

Advice Opinions or Information

Business Practices

Confidentiality

Conflicts of Interests

Procedures

This is a treasure trove!

To email me, click Perry S. Itkin.

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.

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.

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.

“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.

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.

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.