“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.

“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.

“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.

“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.

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.