“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.
Thursday, August 28, 2008
Tuesday, August 26, 2008
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.
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.
Sunday, August 17, 2008
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.
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:
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.
Subscribe to:
Posts (Atom)