Florida Mediator

Florida Supreme Court Adopts Recommendations of the Residential Mortgage Foreclosure Task Force!

2009-12-29T00:12:00.009-05:00

On December 28, 2009 Florida Supreme Court Chief Justice Peggy Quince signed an Administrative Order adopting the recommendations of the court's Residential Mortgage Foreclosure Task Force requiring mediation in residential mortgage foreclosure cases. The Administrative Order is AOSC09-54.

It is well worth reading!

To email me, click Perry S. Itkin.

The Florida Supreme Court Residential Mortgage Foreclosure Task Force Issues Final Report!

2009-08-17T18:57:00.001-04:00

I've been waiting until this moment to provide you with the Final Report of the Florida Supreme Court's Residential Mortgage Foreclosure Task Force [to which I had the honor and privilege of having been appointed by Chief Justice Peggy A. Quince].

The Chief Justice established the task force in March, 2009 by Administrative Order in the wake of dramatic increases in residential mortgage foreclosure case filings.

The Final Report was released August 17, 2009. Appendices to the report are:

The Interim Report was released May 8, 2009.

To email me, click Perry S. Itkin.

2009 MEAC Opinions [and Others] - Online!

2009-05-14T21:13:00.005-04:00

A new addition to my website Mediation Training Center is the menu link Ethics Opinions.

I've included a brief overview of the Mediator Ethics Advisory Committee [MEAC] and added all of the MEAC Opinions from 2004 through 2008, PLUS I've have included the first two 2009 MEAC Opinions which have just been issued [you're among the very first to know].

Please take a look at Ethics Opinions!

I plan to add additional MEAC Opinions for years prior to 2004 and will post here to let you know when I've accomplished that.

Coming up next - the Residential Mortgage Foreclosure Task Force.

To email me, click Perry S. Itkin.

Mediation & Medication

2008-08-28T19:46:00.005-04:00

“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?

2008-08-26T00:28:00.004-04:00

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 . . . !

2008-08-17T15:25:00.005-04:00

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?!?

2008-08-17T14:20:00.002-04:00

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!

2008-08-17T10:53:00.003-04:00

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

2008-06-20T09:17:00.011-04:00

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!”

2008-06-15T17:45:00.006-04:00

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!

2008-04-27T22:29:00.008-04:00

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!

2008-04-21T07:19:00.000-04:00

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!

2008-04-20T14:54:00.007-04:00

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!

2008-03-21T10:59:00.001-04:00

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.

Florida Supreme Court Removes Bar Membership Requirement for Circuit Court Mediators!

2007-11-20T20:45:00.000-05:00

Wow!!! On November 15th the Florida Supreme Court issued In Re: Petition Of The Alternative Dispute Resolution Rules And Policy Committee On Amendments To Florida Rules For Certified And Court-Appointed Mediators, 2007 Fla. LEXIS 2172 [Fla. 2007] in which it amended the Florida Rules for Certified and Court-Appointed Mediators to provide a true point-based mediator certification system by removing The Florida Bar membership requirement for certified Circuit Court Mediators!!!

What a marvelous opportunity for those without legal training, as well as for those who are members of the bar in jurisdictions other than Florida, to become a certified Circuit Court Mediator!

The Court also recognized that there may be situations where one party to a Circuit Court mediation may object to the appointment of a mediator who lacks legal training and if that occurs, the trial court must appoint a mediator who is also a member of The Florida Bar. Florida Rule of Civil Procedure 1.720(f)(2) was amended to reflect this requirement.

Please take the time to read this incredibly important opinion – you’ll be glad you did!!!

Also, if you have any questions please get in touch with me.

To email me, click Perry S. Itkin.

Mediation Math: Pressure To Go To Mediation + Ineffective Assistance of Counsel = Zero!

2007-09-16T21:27:00.000-04:00

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.

Seriously – We Need Your Help With This!

2007-09-11T18:47:00.000-04:00

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!

2007-09-11T17:23:00.000-04:00

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.

The Beatles: Ethical Mediators – “You Can’t Do That!”

2007-08-30T22:41:00.000-04:00

The year was 1964 and The Beatles recorded You Can’t Do That as the B-side of the single Can’t Buy Me Love – you remember both songs, right?!? Seems just like Yesterday – sorry, I couldn’t resist!

Anyway, have you ever been presented with the situation in mediation where one or both of the parties have brought [usually, unannounced] a non-party to the table – of course you have! The party who brought this person says “yes they’ll stay” and the other party says “no” – or, to put it another way, “you say yes, I say no” or vice versa, “you say goodbye and I say hello.” Can’t you just hear it – Hello Goodbye [thank you, Beatles]!

Okay, back to 2007! What about the situation where each party brought a non-party with them and both parties not only agree but also insist that both of the non-parties can attend the mediation?

Is it permissible for a mediator to dictate, over the parties’ objections, who attends mediation? Think like The Beatles!

Is it appropriate for the mediator to instruct non-parties they can not participate in mediation because the mediation is confidential? Think like The Beatles!

Is it a violation of confidentiality for a mediator to direct a party or parties that s/he can discuss mediation communications with someone who does not attend the mediation without consent of all parties? Think like MEAC!

What if the court order to mediate limits attendance to the named parties only? Think . . . .

Actually, you’ll find instructive answers to the above questions in two recent MEAC Opinions –2006-007 and 2007-2004. Take a look, they are very worthwhile!

Have a happy and safe Labor Day Weekend!

To email me, click Perry S. Itkin.

Concetta Rosa Maria Franconero – Mediator!

2007-07-01T20:06:00.000-04:00

Who?!? Okay, okay! How about this: Connie Francis – Mediator! You remember her 1958 hit "Who’s Sorry Now?" [Please say yes!] The song actually was featured in the Marx Brothers’ film A Night in Casablanca (1946) and has become generally associated with her due to the massive worldwide popularity of her version.

Anyway, here’s a terrific article entitled “The Art and Power of the Apology.” It appears in the June, 2007 issue of The Washington Lawyer. In it Sarah Kellogg examines the mounting evidence showing that candidness coupled with apology can reduce lawsuits.

Among the topics covered are:

What Makes a Good Apology?
Corporate Apologies
Apologies in the Health Care Arena
Dispute Resolution in the Workplace
Wariness of the Legal Community

It’s worth reading!

To email me, click Perry S. Itkin.

Do I Or Don’t I . . .

2007-05-31T18:10:00.000-04:00

. . . routinely attach the mediated settlement agreement in a Circuit Civil case to the report I file with the Court?

Hmmm?!?

Okay, the answer is found in MEAC Opinion 2007-002 which provides, in summary, that “it would not be appropriate to routinely attach the mediated settlement agreement to a circuit civil case in light of the requirements of rule 1.730(b), Florida Rules of Civil Procedure.”

It is important to remember the following requirement from that rule:

The mediator shall report the existence of the signed or transcribed agreement to the court without comment within 10 days thereof. [Emphasis added.]

There’s more to this opinion which is worthwhile reading.

To email me, click Perry S. Itkin.

The Lone Ranger – Mediator!

2007-05-30T18:42:00.000-04:00

A fiery horse with the speed of light, a cloud of dust and a hearty “Hi-Yo Silver!” The Lone Ranger rides again! Return with us now to those Thrilling Days of Yesteryear!

Remember this?!? [Please say yes!]

Okay, okay, The Lone Ranger was not a mediator – he could have been though, don’t you think? For example, he was the first to use the “silver bullet” technique often used by mediators today. According to this article in The Plain Dealer, a variation of this technique was recently used successfully.

Do you know what the silver bullet stood for? Me neither! [At least I didn’t remember - uh oh!] It was The Lone Ranger’s symbol of justice! It stood for law and order, fair play and honesty and served as a reminder to the Lone Ranger of his vows to fight for justice and never shoot to kill [i.e. get an agreement in mediation no matter what it takes]. So, don’t you think he could have been a mediator?

By the way, if you want to listen to the entire theme song, click here.

To email me, click Perry S. Itkin.

Are You Comprehensible?

2007-05-11T16:06:00.000-04:00

One of the learning objectives in mediation training is to develop an awareness that people differ in how they make decisions, how they process information, and how they communicate.

U.S. Bankruptcy Judge Leif M. Clark (W.D. Tex.) entered an order captioned “Order Denying Motion for Incomprehensibility” when he couldn’t figure out what the defendant was requesting. As part of the authority for the order, the judge relied on the 1995 comedy “Billy Madison” starring former Saturday Night Live cast member Adam Sandler.

Mediation is based on concepts of communication and one of the roles of the mediator is to reduce obstacles to communication. All to say [pun intended], how mediators and mediation participants communicate is critical [but you knew that, right?!?].

Read the order – it will make you laugh [okay, maybe just smile] – it’s a nice way to start the weekend!

To email me, click Perry S. Itkin.

“Where Have All The Flowers Gone?”

2007-04-15T14:28:00.000-04:00

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 . . .”

2007-04-14T19:57:00.000-04:00

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!”

2007-04-09T19:23:00.000-04:00

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!”

2007-04-06T17:51:00.000-04:00

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!

2007-04-04T19:15:00.000-04:00

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!

2007-04-04T18:32:00.000-04:00

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.

“It’s Clear To Me.” “Me Too.”

2007-03-28T19:32:00.000-04:00

This case from the Third District Court of Appeal is a good illustration of a peril for mediation in not having releases drafted at the mediation conference [or at least the mediator requesting that counsel bring proposed releases to mediation for discussion].

The parties agreed to exchange general releases and other related documents as per the terms of the settlement agreement. Guess what?!? As Gomer Pyle used to say “Surprise; surprise; surprise!” – the parties were unable to agree on the language of the releases required under the settlement agreement.

Appellee filed a motion to enforce the settlement agreement, alleging that pursuant to its clear and unambiguous terms the other party was required to execute a general release containing certain language and the other party argued that the plain and unambiguous language of the settlement agreement did not require such language.

Appellant appealed the trial court’s order enforcing the agreement alleging that since the language in the settlement agreement is susceptible to more than one reasonable meaning, it is ambiguous, and consequently, the trial court erred in resolving Appellee’s motion as a matter of law without holding an evidentiary hearing to determine the intention of the parties. The appellate court agreed, reversed and remanded to the trial court for an evidentiary hearing to resolve the ambiguity based on all of the relevant evidence bearing on the issue.

Although it’s not clear from the opinion that the settlement in this case occurred in mediation, it’s important to remember that, pursuant to Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(c), Conduct of Mediation, Closure,

The mediator shall cause the terms of any agreement reached to be memorialized appropriately and discuss with the parties and counsel the process for formalization and implementation of the agreement.

A good mediator question to ask in this scenario would be, “What if the general releases are not exchanged?” Hmmm!?!

To email me, click Perry S. Itkin.

The Mediator Who Wasn’t!

2007-03-27T23:11:00.000-04:00

Huh?!? According to the Sun-Sentinel in this article, Rachel Otto who has been arrested for impersonating a police officer also has been accused of impersonating a mediator or lawyer or both.

She has a pending court case involving allegations that she pretended to be an attorney and charged her 70 year old neighbor more than $10,000 for her “mediation” in a car crash, according to police reports.

Last June her neighbor reported to police that Otto had committed a fraud against him. He told police that a month after he was involved in a car crash, he found a note from Otto on his front door claiming that detectives had come to her door asking about him. The note urged him to call Otto because she was a lawyer and wanted to discuss what the police had told her.

A woman then called him, identifying herself as a detective, warning him he would be arrested if he did not pay money to the other party in the crash. He then called Otto, who told him she could “mediate” the case. The 70 year old gave Otto $2,000 of his own money and borrowed money from friends for a total of $10,600, to settle the case and pay Otto, according to police reports.

By the way, if you’re not sure who you are, you can take this free [really!] Enneagram test from the Enneagram Institute.

To email me, click Perry S. Itkin.

Be Careful Of What You Don’t Ask For!

2007-03-24T15:16:00.000-04:00

If you don’t ask . . . well, you know!

In Evanston Insurance Company v. Advanced Transportation Solutions, LLC, et al., 32 Fla. L. Weekly D 526 [Fla. 3rd DCA 2007], a personal injury action was settled at mediation between the plaintiffs and 3 different insurance carriers. All the parties signed a General Release, Hold Harmless and Indemnity Agreement in which they agreed not to litigate against each other. Then [you figured something was coming – right!] one of the insurance companies sought to recover its attorneys fees from one of the other carriers.

The Third District Court of Appeal held “tough” [only kidding – sort of!] – what they really held was that the carrier seeking contribution for attorney’s fees waived its right to do so when it entered into the Release Agreement without preserving its right to seek contribution.

Evanston had every opportunity to create such an agreement, particularly since Evanston was a participant at mediation during the negotiation and settlement of {Plaintiff’s} complaint.

There’s more to read in this short and informative opinion.

To email me, click Perry S. Itkin.

MEAC Opinions – Now Online By Subject Matter!

2007-03-20T16:38:00.000-04:00

Whoa! You’re really going to like this!

Florida’s Dispute Resolution Center has now made available online, Mediator Ethics Advisory Committee [MEAC] opinion summaries [with links to all the opinions themselves] from 1994 to 2007 organized by subject matter. Here you’ll find opinions on:

Advertising/Solicitation

Advice Opinions or Information

Business Practices

Confidentiality

Conflicts of Interests

Procedures

This is a treasure trove!

To email me, click Perry S. Itkin.

Mediation Survives!

2007-03-16T11:32:00.000-04:00

In The Auchter Co. v. Zagloul, 2007 Fla. App. LEXIS 3292 [Fla. 1st DCA 2007] the First District Court of Appeal reversed a trial court’s order denying Appellant’s Motion to Dismiss and/or Compel Mediation and/or Arbitration and Stay Action filed in response to a complaint stating causes of action based on a standard American Institute of Architects [AIA] contract between Appellant [as the contractor] and Appellee [as the owner] to build a house. The trial court denied the motion because it determined that the mandatory mediation and arbitration provisions of the contract did not survive Appellee’s termination of the contract.

Talk about frustration – reading the ADR provisions of the contract as the trial court did would permit parties to avoid ADR simply by purporting to terminate the contract – so much for the public policy of broadly interpreting ADR contract provisions in favor of resolving controversies out of court!

The First District held that the dispute resolution provisions of the contract are intended to survive purported termination of the contract by a party [unless there is a clear intent to the contrary] and reversed and remanded the case with directions that the trial court order Appellee to proceed to mediation and, if mediation fails, to binding arbitration, as contemplated by the agreement he signed, and that it stay further court proceedings pending compliance with that order.

So, do you think the same person should be both the mediator and also the arbitrator? [Nope!]

To email me, click Perry S. Itkin.

More Excellent Florida ADR Reference Materials On-line!

2007-03-14T18:57:00.000-04:00

Really – it’s true! The Florida Dispute Resolution Center has put its 2006 Resource Handbook online as well as its 2005 Compendium.

The ADR Resource Handbook contains Florida ADR Statutes, Procedural Rules: Mediation & Arbitration, Rules for Certified & Court Appointed Mediators, Rules for Court Appointed Arbitrators, Mediation Training Programs Standards & Procedures, and the current Mediator Certification Administrative Order.

The 2005 Compendium contains statistics and descriptions of court-connected ADR programs, contact information for court ADR programs, and Supreme Court ADR committees and boards.

An order form to purchase hard copies of these volumes can be found here.

To email me, click Perry S. Itkin.

Talented Mediators & Salt – A Commonality?

2007-03-13T14:53:00.000-04:00

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Advice, Opinions, or Information, provides in part:

(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue. Consistent with standards of impartiality and preserving party self-determination however, a mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute. [Emphasis added.]

Talented mediators have an “optimal” level of assertiveness – that is, they are not under- or over-assertive. According to a recent study in the February issue of the Journal of Personality and Social Psychology, published by the American Psychological Association, leaders who are perceived as low or high in assertiveness are seen as less effective than those who are moderately assertive. Those who are moderately assertive have the flexibility of modifying their behavior up or down as the situation dictates [i.e., they can “duly” influence the parties without coercing them].

What does salt have to do with this? One of the researchers has described assertiveness in this way: “We say it’s like salt in a sauce: when there’s too much or too little, it’s hard to notice anything else, but when it’s just right, you notice the other flavors. No one compliments a sauce for being perfectly salted, and it’s just as unusual for a leader’s [substitute – mediator’s] perfect touch with assertiveness to attract much notice.”

How much “salt” [substitute – assertiveness] is in your mediator toolbox?

To email me, click Perry S. Itkin.

“The Judge Did What?!!?”

2007-03-12T17:18:00.000-04:00

In Stallworth v. Phinney, 32 Fla. L. Weekly D450 [Fla. 1st DCA 2007] the trial court modified the parties’ final judgment of dissolution to order, pursuant to the parties’ agreement, that the parties’ daughter would complete her elementary education at a particular school [no problems yet]. The Appellee former husband thereafter unilaterally elected to place the daughter in a different school [uh oh!]. As you might expect, the Appellant former wife then filed an emergency motion for contempt and requested that the motion be considered at an expedited evidentiary hearing.

The trial court declined to hold the requested hearing and entered an order denying the Appellant’s motion [now there’s a problem]. The judge, after denying the former wife’s motion, directed the parties to mediate the issue, and granted the Appellee the final authority to choose a school if mediation was unsuccessful [the problem is getting bigger!].

The First District Court of Appeal reversed the trial judge and remanded the case to the trial court with directions that an evidentiary hearing be promptly held. The appellate court determined that:

In refusing to hold an evidentiary hearing, the trial court denied the former wife due process.

How about that!

To email me, click Perry S. Itkin.

Almost There – Light At The End Of The Tunnel

2007-03-11T00:38:00.000-05:00

An earlier post on the status of the requirements to become a Circuit Court Mediator certified by the Florida Supreme Court [Case Number SC 05-998] was entitled We’re Still Waiting!

We’re getting closer! The Court has scheduled oral argument for May 7, 2007. This is almost two years to the day the original petition was filed – May 11, 2005! You can watch the oral argument.

To email me, click Perry S. Itkin.

Are You A “Persuasion Master?”

2007-03-10T13:23:00.000-05:00

Huh?!? Okay, how about identifying techniques a mediator may use to assist a party in reconsidering his or her position on a particular proposal and knowing when to use various persuasion techniques?

These are among the concepts mediators utilize daily.

In order to be adept at employing persuasion strategies, we should understand the Six Laws of Persuasion as illustrated in this excellent article from Global Knowledge.

So, after reading the article, would you consider yourself to be a “Persuasion Master?”

To email me, click Perry S. Itkin.

Is There Such A Concept As “Behavior Unbecoming A Mediator?”

2007-02-05T15:37:00.000-05:00

Well, not exactly according to MEAC Opinion 2006-004. The question posed is “Can a Florida Supreme Court Certified mediator be sanctioned for behavior “unbecoming” of a mediator when participating in a mediation as a party or an attorney?”

In summary the opinion of the Mediator Ethics Advisory Committee is:

A certified mediator is subject to a good moral character requirement and is prohibited from performing any act which would compromise the mediator’s integrity; however, there is no general prohibition regarding a mediator exhibiting behavior “unbecoming” a mediator. In addition, the actions of an attorney or a party in a mediation, cannot be judged as if they were those of a mediator.

After you read the facts submitted to MEAC, do you think the Florida Rules for Certified and Court-Appointed Mediators should be amended to include an ethical rule addressing the concept of “behavior unbecoming a mediator?” If you were the mediator in this case, how would you have addressed the situations?

To email me, click Perry S. Itkin.

Mediator On A Tightrope – MEAC Opinion 2006-003!

2007-01-03T08:18:00.000-05:00

Hmmm!!! Florida Rule of Civil Procedure 1.720(b) provides in pertinent part:

Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys’ fees and other costs, against the party failing to appear. . . .[U]nless stipulated by the parties or changed by order of the court, a party is deemed to appear at a mediation conference if the following persons are physically present:

(1) The party or its representative having full authority to settle without further consultation.
(2) The party’s counsel of record, if any.
(3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.
[Emphasis added.]

So, what if, during the mediation process, the mediator learns that a party or representative doesn’t have “full authority” – can the mediator report that to the court? [Not so fast!] Should the mediator be able to report that to the court?

What about confidentiality and Florida Rules for Certified and Court-Appointed Mediators, Rule 10.360 and Florida’s Mediation Confidentiality and Privilege Act, F.S. 44.405 [Confidentiality; privilege; exceptions.]?!??!? Is lack of authority to settle one of the exceptions to confidentiality set forth in the Rule or statute? [Nope!]

Just what can/should the mediator report to the court? Read this interesting MEAC Opinion to figure out how to think about [after all, it is a dilemma, i.e. mediator accountability to the court Florida Rules for Certified and Court-Appointed Mediators, Rule 10.500] and how to address this situation [or not]!

Do you see any problems here? Seriously, please let me know.

To email me, click Perry S. Itkin.