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.