Sunday, April 27, 2008

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.

Monday, April 21, 2008

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.

Sunday, April 20, 2008

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.