Mediation & Medication

“What drugs are you on?” Is this a good question for a mediator to ask a party? No. Okay, how about “are you juiced?” No. Okay, how about “have you taken your meds today?” Not much better. Should mediators engage in the practice of asking parties about their medications and is this something to be concerned about?

Actually, yes. According to this article in the National Law Journal entitled “What’s Your Juror Taking.”

As the percentage of Americans taking various medications skyrockets, some jury consultants and lawyers have begun asking potential jurors what kinds of medications they are taking.

They're concerned about potential side effects associated with medications that can affect a person's ability to concentrate, sit for long periods of time and otherwise act as jurors.

At the least, and prior to the parties signing their mediated settlement agreement, should the mediator be asking whether the parties have taken any medication that has interfered with their ability to understand the terms of the agreement and other similar questions? What about the timing of such a question – is the issue better addressed at the beginning of the mediation conference? How about during the mediation conference? How would you frame the question or questions?

There are ethical considerations involved here. For example, Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(d) Self-Determination, Postponement or Cancellation provides:

If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.

Also, Rule 10.420(b)(3) Conduct of Mediation, Adjournment or Termination informs us that:

A mediator shall adjourn or terminate the mediation if the mediator believes the case is unsuitable for mediation or any party is unable or unwilling to participate meaningfully in the process.

We can learn a great deal from reading the article – grab a cup of coffee [just kidding!] and take a look!

To email me, click Perry S. Itkin.

Mediation & Chicken Soup?

What do mediation and chicken soup have in common? They’re both good for you!

According to a recent article in The New York Times, “Study Finds Settling Is Better Than Going To Trial,” a study to be published in the September issue of the Journal of Empirical Legal Studies has found that most of the plaintiffs who rejected a settlement offer and went to trial received less money than if they had accepted the offer. Defendants “made the wrong decision by proceeding to trial far less often, in 24 percent of cases; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.”

Mediators are the “agents of reality” empowering the parties. This role becomes even more critical in the face of the study’s findings which “suggest that lawyers may not be explaining the odds to their clients — or that clients are not listening to their lawyers.”

It's a very interesting article - worth reading!

To email me, click Perry S. Itkin.

You Don’t Just RSVP [Or Not] To A Court Order – You Comply Or . . . !

In Mojzsik v. Estrada, 983 So.2d 699 [Fla. 5th DCA 2008], Appellee’s attorney sought relief from the Fifth District Court of Appeal’s Order to Show Cause for failure, without good cause, to appear at a court-ordered appellate mediation. Apparently, he failed to appear at hearings without notice, failed to file the court ordered mediation questionnaire, delayed payment of fees awarded by the court, and did not appear at the show cause hearing even after his motion to appear by phone was denied.

The cornucopia of failures to comply transcended the period of September, 2007 to May, 2008 and resulted in:

· Imposition of monetary sanctions against counsel being deemed appropriate but withheld pending the outcome of counsel’s bankruptcy proceedings;

· The clerk being directed to provide a copy of the opinion to The Florida Bar for appropriate action [scroll down the page near the bottom]; and

· Withdrawal of the court’s mediation order so that the case could move forward with the merits of the appeal.

To email me, click Perry S. Itkin.

You Want How Many Bites At The Apple!!!! You’re Kidding, Right?!?

One – okay. Two – not so fast! Three – that’s crossing the line. Well, how about ten?!?

In Ayala v. Gonzalez, 33 Fla. L. Weekly D336 [Fla. 5th DCA 2008] and in Ayala v. Gonzalez, 33 Fla. L. Weekly D1230 [Fla. 5th DCA 2008][Clarification of Opinion and Denial of Motion for Rehearing], sanctions against the former wife and her attorney in a divorce case in the form of an award of appellate attorney fees to former husband were warranted according to the Fifth District Court of Appeal.

This case was on appeal from the third denial of the wife's request for relief from a mediated settlement agreement that was incorporated into the Final Judgment of Dissolution of Marriage which was never appealed [actually, the wife had brought ten unsuccessful appeals in this case, one of which involved a request for identical relief] and the wife, through her counsel, had tried, through a variety of unsuccessful means, at various judicial levels on nine different occasions to invalidate the mediation settlement agreement.

By the way, res judicata still means something!

Oh, one more thing – do you think it’s a good idea to tell the appellate court that is has “made an absolute muddle of several foundation concepts in the law”? I didn’t think so!

Please read both opinions to gather all the facts.

To email me, click Perry S. Itkin.

Soon It Costs More!

On June 30, 2008 Florida Supreme Court Chief Justice R. Fred Lewis, as one of his final acts as Chief Justice, entered Administrative Order AOSC08-23 In Re: Procedures Governing Certification of Mediators.

The Administrative Order includes several important substantive changes including:

• New language clarifying mentorship timing: “A trainee shall not fulfill any of the mentorship requirements before beginning the certified mediation training program which will be used for the pending application.” [page 6]
  

• New fees effective January 1, 2009 [page 9].
  

• Review of staff denials for certification or renewal will be made by a 3 person subcommittee of the ADR Rules and Policy Committee which will make a recommendation to the full Committee and the Committee's decision shall be final. [pages 9 -10]
  

• A new way to complete CME: “Successfully completing a self-directed program that is qualified for continuing education credit by a governmental licensing board.” [page 12] [A good example would be nurses.]

It would be worthwhile to read the entire Administrative Order!

To email mail me, click Perry S. Itkin.

Small Claims Rules’ Amendment Impacts Mediation + A Question

The Florida Supreme Court, in In Re: Amendments To Florida Small Claims Rule 7.090, Case No. SC07-1724 [Fla. 2008] amended Florida’s Small Claims Rules regarding notification to the parties that mediation may occur at the pretrial conference and that sanctions may be imposed against a party whose representative fails to appear with “full authority to settle”. The effective date of the change is October 1, 2008.

Fla. Sm. Cl. R. 7.090(f) reads as follows [the underlined language reflects the amendment]:

(f) Appearance at Mediation; Sanctions. In small claims actions, an attorney may appear on behalf of a party at mediation if the attorney has full authority to settle without further consultation. Unless otherwise ordered by the court, a nonlawyer representative may appear on behalf of a party to a small claims mediation if the representative has the party’s signed written authority to appear and has full authority to settle without further consultation. In either event, the party need not appear in person. Mediation may take place at the pretrial conference. Whoever appears for a party must have full authority to settle. Failure to comply with this subdivision may result in the imposition costs and attorney fees incurred by the opposing party.

The Court also adopted a change to Form 7.322. Summons/Notice To Appear For Pretrial Conference.

Please be sure to read the Court Commentary [Thank you for that!] to the newly revised Rule which is fully illustrative of the bedrock mediation principle of party self-determination!

I have a question, though, and that is how will the lack of authority to settle be properly brought to the attention of the trial judge without violating the Mediation Confidentiality and Privilege Act [F.S. 44.401 - 44.406]? This is a problem within the Florida Rules of Civil Procedure as well, in particular Fla. R. Civ. Pro. 1.720(b). There are 2 draft alternatives to this Rule developed by the Alternative Dispute Resolution Rules and Policy Committee to address this problem. Please click here to see what they are and to add your input – really, please assist. Your comments are all reviewed and discussed by the Committee.

To email me, click Perry S. Itkin.

“Would Have, But . . .” “Should Have, But . . .” “Could Have, But . . .” – “Didn’t!”

In Leff and Physicians Financial Consultants Corporation v. Ecker, M.D., 972 So.2d 965 [Fla. 3rd DCA 2007], the plaintiff went into the mediation conference without a clear picture of what the insurance policy limits were. Notwithstanding this limited knowledge, plaintiff chose to go ahead with the mediation and entered into an agreement at the end of mediation.

The Defendants filed a motion to enforce the mediated settlement agreement [Guess why! Good guess!]. The Plaintiff argued that a “mutual mistake” allowed him to avoid the parties’ mediated settlement agreement.

Not so fast according to the Third District Court of Appeal:

A party to an agreement bears the risk of mistake when he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient.

The doctrine of mutual mistake was not created to relieve litigants of agreements entered into improvidently. The all-out efforts plaintiff later engaged in to go behind the policy and ascertain, without question, what policies applied and what policy limits were, could have been performed before the mediation. [Emphasis added.]

The appellate court reversed the trial judge and remanded the case for the entry of an order enforcing the settlement agreement.

By the way, what about confidentiality? Although not mentioned in the opinion, Florida’s Mediation Confidentiality and Privilege Act [F.S. 44.401 – 44.406] includes certain permitted, although limited, disclosures. For example, F.S. 44.405(4)(a)(5) provides there is no confidentiality or privilege for any mediation communication:

Offered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.

But, you knew that – right?!? Anyway, it will be time well spent taking another look at the statute.

To email me, click Perry S. Itkin.

Hybrid Is Not Just A Motor Vehicle!

Are you a Med-Arbitrator? [Why?] Would you serve in the dual capacity of mediator and arbitrator in the same matter? [Why?] Or, to misquote Harry Callahan “Do you feel lucky?” [You know, as in Clint Eastwood’s movie Dirty Harry].

The hybrid ADR process med-arb was recently recognized by the Ontario Court of Appeal case Marchese v. Marchese, (2007), 35 R.F.L. (6th) 291 in which a contractual agreement to engage in med-arb was not only recognized but also enforced. The agreement provided that the parties would attend “mediation/arbitration” [note the slash mark] with the same individual. The court stated:

We do not agree with the submission that there is any ambiguity in the words“mediation/arbitration” or that those words mean “mediation or arbitration.” Mediation/arbitration is a well recognized legal term of art referring to a hybrid dispute resolution process in which the named individual acts first as a mediator and, failing agreement, then proceeds to conduct an arbitration.

While the hybrid process is valid, how it is implemented is critical. I believe it is improvident for the same individual to serve in the dual role [there’s opportunity for co-ADR neutrals here]. Florida’s Mediator Ethics Advisory Committee issued an opinion in an analogous situation, MEAC Opinion 96-002, and opined that by accepting an appointment as Special Master after having served as a mediator in the same matter, the mediator places mediator integrity and impartiality at risk. I also believe that, after the issuance of the opinion, changes to the 2006 Florida’s Rules for Certified and Court-Appointed Mediators and the 2004 Mediation Confidentiality and Privilege Act do not alter the wisdom of the opinion.

The highest number of grievances filed against mediators in Florida is lack of impartiality – think about the consequences of serving as a mediator and, notwithstanding party agreement, thereafter serving the same parties in the same case as the arbitrator. For example, what about the confidential information you’ve learned in caucus outside the presence of the other party – the out of caucus party won’t know about that information – any problem here? Think about party perspective!

So, what are you thinking, “do you feel lucky?!?” If you have a different view, please share it with me.

To email me, click Perry S. Itkin.

Brenda Mae Tarpley’s Negotiation Technique and Sanctions!

Who?!? Okay, how about Brenda Lee [her real name is Brenda Mae Tarpley]? You remember her number one 1960’s hit “I’m Sorry” – please say yes! No, okay then how about remembering 1960 as the year Elvis was promoted to Sergeant in the U.S. Army and 2 months later was discharged and returned home.

Anyway, in case you don’t remember the song, or you’d like some nostalgia, you can listen to it here – in part or in whole – or you might prefer just reading the lyrics.

Or . . . you might return to 2008 and learn what happened to the lawyer who, notwithstanding his apology to the Court for admittedly violating the U.S. District Court’s order relating to the confidentiality of mediation sessions, was held in contempt in the Memorandum Opinion in Williams, et al. v. Johanns, et al., 2008 WL 36633 (D.D.C., January 2, 2008).

The judge succinctly highlighted the critical nature of confidentiality in mediation.

To email me click, Perry S. Itkin.

An Immunity Booster!

Florida Statute 44.107 provides immunity for mediators and mediator trainees in court-ordered and noncourt-ordered mediations. In court-ordered mediations the mediator has “judicial immunity in the same manner and to the same extent as a judge.” In noncourt-ordered mediations the mediator has a qualified “immunity from liability arising from the performance of that person's duties while acting within the scope of the mediation function. . . .”

Although there are no Florida cases interpreting the mediator’s judicial immunity, here’s a New Jersey case, Malik v. Ruttenberg, et al., 398 N.J. Super. 489; 942 A.2d 136 [App. Div. 2008] which determined that an arbitrator [substitute mediator for our purposes] cannot be liable for an attorney’s alleged attack on a party during a recess during the proceeding.

The New Jersey Arbitration Act, adopted from the model act developed by the National Conference of Commissioners on Uniform State Laws, provides that an arbitrator “is immune from civil liability to the same extent as a judge of a court of this State acting in a judicial capacity”, N.J.S.A. 2A:23B-14.

Remember, in Florida “[t]he mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation” Fla. R. Civ. Pro. 1.720(c) and Fla. Fam. Law R. Pro. 12.741(b)(4).

It is critical that you read this important case which is the first in the United States to interpret the immunity provision. Also, this article in the New Jersey Law Journal is worth reading as well.

To email me, click Perry S. Itkin.

Warning – A Kvetch Can Be Dangerous!

Do you have mediator professional liability insurance? If not, why not? If yes, well . . . .

According to this article in the New Jersey Law Journal, the question could be posed another way: How angry do clients have to get before attorneys [substitute ‘mediators’] must warn insurers a suit is possible?

In the ongoing litigation in General Star National Insurance Co. v. Law Offices of Robert A. Olkowitz, P.C., 07-5433, the insurance company asked a federal judge to rule it doesn't have to cover or defend its insured personal injury lawyer in a malpractice case because he didn’t notify the company when a client expressed displeasure with a settlement.

The attorney filed a motion to dismiss asking the judge to declare that a client’s expression of “displeasure” does not, as a matter of law, trigger the responsibility to put a malpractice carrier on notice.

Hmmm!!! Something for mediators to think about. The article is well worth reading!

To email me, click Perry S. Itkin.