Sometimes Gift Giving Is Not a Good Idea!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.330(c), Gifts and Solicitation, provides, in part, that

A mediator shall neither give nor accept a gift, favor, loan, or other item of value in any mediation process.

What are the consequences of a mediator giving gifts of lunches, gift baskets and cash? [That’s right – cash. I know, you’re wondering what mediator in their right mind would give cash!] According to this article from Newsday, the chief of the New Jersey state panel that hears labor disputes has been demoted, following an ethics probe that found his employees accepted gifts and cash from individuals and law firms seeking work as mediators.

By the way, there are two Mediator Ethics Advisory Committee opinions on the topic of mediator gift giving, 2001-006 and 99-005. They are worth reading!

To email me, click Perry S. Itkin.

Reprehensible Negotiation Tactics Just Don’t Cut It!

Although this Third District Court of Appeal case is not a mediation case specifically, it does provide some insight as to how a court evaluates reprehensible negotiation tactics - alternatively characterized as bad faith [arbitrary negotiation] in this corporate statutory structure or negotiation by extortion, generally. Neither was helpful to the appellant in Morales v. Rosenberg, 2005 Fla. App. LEXIS 16284 [Fla. 3rd DCA 2005]. As mediators, don’t you think we should be alert to these tactics and their consequences?

To email me, click Perry S. Itkin.

Referral to Mediation Forestalls Claim for F.S. 57.105 Attorneys’ Fees

The Second District Court of Appeal in Connelly v. Old Bridge Village Co-op, Inc., et al., 2005 Fla. App. LEXIS 16307 [Fla. 2nd DCA 2005] reversed an order awarding attorney’s fees and costs under section 57.105(1), Florida Statutes. In this unique case, a motion to dismiss was filed and instead of ruling on it the court ordered the parties to mediation which resulted in an impasse. Part of the rationale for the appellate court’s reversal of the award was that “the referral to mediation suggested that the declaratory judgment action had some validity or at least was not so devoid of merit as to be obviously and apparently unsupported by the material facts necessary to establish the claim.”

How about that? Isn’t the aura of mediation something?!?

To email me, click Perry S. Itkin.

Breach of Confidentiality – Is There Liability for The Mediator or Mediation Participant?

Suppose, just suppose, the mediator makes a wrongful disclosure of confidential information. Okay, you don’t want to suppose that – then suppose, just suppose, a mediation participant makes the same wrongful disclosure. Still not pleasant, I realize. Yes, mediators have two types of statutory immunity from liability – “absolute” and qualified – F.S. 44.107. That does not necessarily prevent someone from filing a lawsuit. I know, this is not getting better. We now have a Mediation Confidentiality and Privilege Act which provides a civil remedy for its violation in F.S. 44.406. Where is all this going you wonder?

In Woodward v. Jupiter Christian School, Inc., 4D04-3531 [Fla. 4th DCA 2005] decided today, the issue was whether Florida’s “impact rule” applies to a claim for negligent infliction of emotional distress arising out of a breach of a fiduciary duty of confidentiality. Both the majority opinion and the dissenting opinion contain thorough, cogent analyses of the issue. The opinion is well worth reading and to think about whether there is liability for the mediator or mediation participant in the event of a breach of confidentiality. Really, please think critically about the potential here.

To email me, click Perry S. Itkin.

“I’m Divorced; I’m Divorced; I’m Divorced!”

Not me personally! According to this article in the Khaleej Times, a husband saying Talaq three times, even in the presence of the wife, is not sufficient ground for divorce. The High Court in Kerala has said that under Muslim law, mediation should be undertaken before using the Talaq option in divorce. In that case, the husband argued there was a valid ground for divorce and he was not obligated to pay maintenance. The court didn’t accept his argument. Do you see any similarity to some [okay, more than some] Florida trial judges requiring mediation prior to Final Hearing in a dissolution of marriage case? Of course you do!

To email me, click Perry S. Itkin.

Florida Is Not Alone!

The Gulf Coast has been ravaged by Hurricanes Katrina and Rita. Florida was fortunate this time. However, the damage to Florida wrought by last year’s hurricanes and the difficulties experienced by homeowners with their insurance companies has been addressed through mediation as previously mentioned in Florida Mediator first in this post and in a follow up post. In response to the Gulf Coast Tragedy, the American Arbitration Association has established a new Disaster Recovery Claims Resolution Services program to use mediation to resolve insurance claim disputes between homeowners and businesses and their insurance carriers.

To email me, click Perry S. Itkin.

Is The Mediation Process Abused?

On occasion, parties and counsel abuse the process of mediation. Remember, not all cases, not all parties and not all counsel are suitable for mediation. Having said that, according to this article from Oregon Public Broadcasting, one side in this case involving alleged molestation by priests in the Portland Archdiocese claims the other side is using mediation as a delaying tactic. What do you think?

To email me, click Perry S. Itkin.

“We Must Talk” - Pre-mediation Settlement Discussions Required in Certain Mobile Home Disputes

F.S. 723.037 of Florida’s Mobile Home Park Lot Tenancies statute [Chapter 723, Florida Statutes] requires mobile home park owners and a committee of mobile home owners [or the mobile homeowners’ association board of directors’ designees] to meet within 30 days after receipt by the homeowners of a notice of change in lot rental amounts, reductions in services or utilities or changes in rules or regulations. Ground rules are set forth in the statute. This is a pre-requisite to the parties proceeding to mediation. Is this a good idea?

By the way, as you may have suspected, pre-suit mediation is required before litigation.

To email me, click Perry S. Itkin.

“Respectfully, you can’t do that in a family case either, Judge.”

In Burkley v. Burkley, 2005 Fla. App. LEXIS 15479 [Fla. 5th DCA 2005], the former wife filed a supplemental petition for modification of child support and for breach of contract. The claim for breach of contract was based on a mediation agreement which was previously approved by the trial court: “This [Mediation Agreement] shall not be merged with or into the [Stipulated Order], but shall survive as a separate, enforceable contract on its own and shall be enforceable by either party as such.” The trial judge imputed income to the father, established a child support arrearage, and modified child support based on breach of contract. The Fifth District Court of Appeal reversed because virtually all of the ruling and judgment relied on the trial court’s interpretation of Chapter 61, Florida Statutes which the trial judge ignored and applied erroneously.

So, even though there is a mediation agreement pertaining to child support which did not offer support beyond that provided for in the statute, the court must regard the mediation agreement in the context of the statute’s explicit limitations on modifying support, imputing income, or awarding retroactive support. Do you think this may impact how mediation agreements are drafted as they pertain to child support?

To email me, click Perry S. Itkin.

To Avoid the Death Penalty All You Have To Do Is Ask!

Ok, not exactly! Dismissal with prejudice in a civil case is sort of tantamount to the “death penalty”. In Office Environments, Inc. v. Lake States Insurance Co., 833 N.E.2d 489 [Ind. Ct. App. 2005] the Indiana Court of Appeals upheld a dismissal with prejudice when a party refused to comply with a mediation order to mediate. The Court of Appeals found that Appellant delayed mediation for an unreasonable period of time and did not use the proper channels in refusing to pay for mediation. It really shouldn’t take 3 years to schedule mediation, should it? Pretty good work by the mediator here in attempting to schedule this mediation! Take a look.

To email me, click Perry S. Itkin.

“Respectfully, you can’t do that, Judge.”

In Johnson v. Bezner, 2005 Fla. App. LEXIS 14746 [Fla. 4th DCA 2005] the Fourth District Court of Appeal reversed the trial judge, not because the judge enforced the mediated settlement agreement and not because the trial judge found that appellants had breached the agreement, but because the trial judge fashioned a remedy for the breach and imposed terms that were not included in the agreement. No wiggle room in this circuit civil case!

To email me, click Perry S. Itkin.

Upcoming ABA ADR Program

On October 21, 2005 at the Venetian Resort Hotel Casino in Las Vegas, Nevada, the ABA Section of Intellectual Property and The Forum on Entertainment and Sports Industries are co-sponsoring an ADR program Hot Topics in Entertainment and Intellectual Property Law for the Lawyer and the ADR Neutral. You can obtain more details here.

To email me, click Perry S. Itkin.

FEMA to Hire Mediators for Temporary Disaster Deployment

FEMA (the Federal Emergency Management Agency) has posted announcements for highly qualified “Conflict Resolution Specialists” and “Alternative Dispute Resolution Attorneys” to join a special ADR team to assist in disaster response and recovery. A total of 25 positions will be filled. This has been put on the fast track. Closing date for these positions is Monday, October 10th, 2005. Training will take place in late October or November. Deployment of some team members will take place soon thereafter. Compensation, travel and per diem are included for all training and deployment assignments.

Questions and resumes should be submitted ONLY to the email in the job opportunity announcements. If you are very experienced and qualified in mediation and conflict resolution, please submit your resume as soon as possible.

For Conflict Resolution Specialists (non-attorneys) click here.

For ADR Attorneys click here.

To email me, click Perry S. Itkin.

Mediators as “Change Agents”

Faced with the need to change their perception of their conflict [and only if they want to], disputing parties look to the mediator as their “Change Agent”. Mediation has as its focus a future orientation [but you knew that!]. So among our challenges is to assist the parties in focusing on the problem and then move forward. Here’s an interesting article from the September, 2005 issue of Link and Learn about how anesthesiologists looked at themselves and altered the course of their profession – by defining the change. Do you see any parallels to mediation skills and techniques?

To email me, click Perry S. Itkin.

“I’m Certified; Now What?!?”

You’ve completed the certification training program [good!]; you’ve completed the mentorship requirements [better!]; you’ve submitted your application for certification, it was approved and you’ve become a Florida Supreme Court Certified [county/circuit civil/family/dependency – take your pick] mediator [best? – well, not just yet!]. You have new business cards and letterhead stationery [maybe even a website] – that’s nice. How do you ‘break into the field’ [that would be the best, right?!?] when there are already experienced mediators out there? You are not alone according to this article in London’s Legal Week.

To email me, click Perry S. Itkin.

Behind Closed Doors

Here’s an article from the Orlando Sentinel which contains interesting information into a party’s perception of the mediation conference and a collaborative outcome in a sad case involving the death of two sisters walking across the street killed by a driver who ran a red light. A criminal case arising out of the same facts is still pending. What impact, if any, do you think the mediated civil settlement will have on the criminal matter?

To email me, click Perry S. Itkin.

Happy Anniversary!

Well, not to an individual but rather to the NASD which is celebrating the 10th Anniversary of its Mediation Program according to this press release. In the past 10 years, NASD has processed over 12,500 cases covering a wide variety of securities disputes. Keep up the good work!

To email me, click Perry S. Itkin.

Surprise!

As you know there are different styles of mediating, i.e. facilitative, evaluative, transformative, etc. Have you heard about “Surprise Mediation”? Ok, it’s not exactly a mediation style. According to this article in The Arizona Republic – ‘Surprise offers mediation as an alternative to court’. The city of Surprise, Arizona has a community mediation program which offers free mediation services to city residents and local businesses – hence, “Surprise Mediation” [you figured that out by now, right?].

I start a 40 hour Family Mediation Certification Training program tomorrow and will post again next week. Please have a safe and enjoyable weekend.

To email me, click Perry S. Itkin.

Sponsor of Mediation Confidentiality and Privilege Act Runs for Florida Attorney General

Florida State Senator Walter “Skip” Campbell has announced his campaign for Attorney General according to this article in the South Florida Sun-Sentinel. Senator Campbell was the sponsor of the 2004 Senate Bill 1970 which, among other mediation items, included the groundbreaking Mediation Confidentiality and Privilege Act, F.S. 44.401-44.406. Good luck, Senator Campbell!

To email me, click Perry S. Itkin.

It’s Perfectly Clear!

In Developers of Northlake, Inc., and Twin Cities Investors, Inc. v. Northlake Equities, Inc., 2005 Fla. App. LEXIS 14105 [Fla. 4th DCA 2005] the Fourth District Court of Appeal decided that what the parties argued was unambiguous [citing, of course, their opposite views of the world] was indeed unambiguous and that the trial judge’s order enforcing a mediation agreement was in error even though one articulated position lead to an absurd result; that’s what the arbitrator ordered [yes, arbitrator] and that the parties agreed to be bound by the arbitrator’s decision. What’s unfortunate here is an apparent lost opportunity in mediation to explore the parties’ divergent views of the meaning of the arbitrator’s words in his award.

To email me, click Perry S. Itkin.

Excellent Florida ADR Reference Materials On-line!

Really – it’s true! The Florida Dispute Resolution Center has put its 2005 ADR Resource Handbook online as well as its 2005 Compendium. The ADR Resource Handbook contains FL ADR Statutes, FL Procedural Rules: Mediation & Arbitration, FL Rules for Certified & Court Appointed Mediators, FL 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.

Mediating with the Police

Here are two articles which provide interesting applications for mediation in the law enforcement venue. One program involves mediating citizen complaints against police officers as reported in this article in The Seattle Post-Intelligencer Reporter. Another use of mediation is in disciplinary matters involving police officers as reported in this article in The Daytona Beach News-Journal: East Volusia. Good ideas, don’t you think?!?

Speaking of law enforcement, please enjoy a safe, peaceful Labor Day Weekend!

To email me, click Perry S. Itkin.

Sue the Mediator – Face Immunity!

Although you don’t hear much about mediators as defendants in litigation [thankfully], it does happen from time to time as was the situation in Secress v. Ullman, 2005 U.S. App. LEXIS 16490 [9th Cir. 2005]. Even though this was a California case, it’s certainly a “heads up” for mediators everywhere. The Court relied on quasi-judicial immunity as part of the basis for dismissing the case against the mediator, who, by the way, was not the only defendant.

Florida has a statute providing for immunity for mediators serving both in court ordered and noncourt-ordered mediations, F.S. 44.107. This provides a statutory defense – it doesn’t prevent a lawsuit from being filed. Be careful out there!

To email me, click Perry S. Itkin.

Help Victims of Hurricane Katrina

The Network for Good has a useful listing of organizations and a brief description of the relief efforts they provide in helping the victims of Hurricane Katrina. Please visit the website.

To email me, click Perry S. Itkin.

“But I Thought . . . .”

This article from the Harvard Business School’s Working Knowledge newsletter is an excellent presentation on comparing critical [translated means logical] thinking with emotional thinking. Although written in a business management context, the decision-making concepts are equally applicable in mediation. So, are you a critical thinker, an emotional thinker, or [in the spirit of mediation] both?

To email me, click Perry S. Itkin.

The Tragedy of Katrina

Only prayers today – for the victims of Hurricane Katrina and for the rescue and response workers as they maneuver through the destruction. Frankly, I’m without words – the devastation is overwhelming and unfathomable. The Red Cross and The Salvation Army are just two of the aid organizations you might think about if you want to help.

To email me, click Perry S. Itkin.

Mediating an Embezzlement!

Well, not exactly. To put the title of this post in another way, it could read “How ‘I have a great case’ became so complicated that the solution lies in mediation” [except that’s too long for a title]. Here’s a very interesting article in the Skagit Valley Herald [State of Washington] in which the prosecutor and defense counsel in a criminal proceeding have turned to mediation in an effort to resolve the issues because of the twists and turns the case has taken in court.

To email me, click Perry S. Itkin.

“Say What?”

As mediators we know how important listening is as an essential skill and, yes, you’ve heard this a thousand times [me too]. It’s too important to forget, must be done without distraction to be significant and is critical for relating to people exceedingly well [we want that, right?!? Say yes!]. Here’s an interesting article which appeared in Fast Company magazine with a good exercise to help us remember to communicate with caring, empathy and respect. After all, that’s a big part of what we do!

I’ll be attending Florida’s annual Dispute Resolution Center conference in Orlando and won’t be posting again until Monday. Oh, by the way, we’re supposed to have Hurricane Katrina in a day or so in Fort Lauderdale [please don’t let that happen] which is why I won’t be blogging also.

To email me anyway, click Perry S. Itkin.

We Do Make A Difference!

Here’s a nice story from the Palatka Daily News about the volunteer mediation program in Putnam County, Florida where, by the way, they have a need for County Court Mediators – if you’re not mediating as much as you would like to and you’d like to keep your skills sharp, why not give them a call?!? Judy Carroll is the director of the mediation program in Putnam, St. Johns, Flagler and Volusia Counties – telephone 386.239.6504.

To email me, click Perry S. Itkin.

The August, 2005 “Resolution Report” Is Now Available

The Dispute Resolution Center’s August, 2005 issue of The Resolution Report is now available. It contains an update of the activities of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy [a hardworking group of dedicated and talented individuals], current Mediator Ethics Advisory Committee Opinions [a must read section], an update from the Mediator Qualifications Board [we can learn from the grievance case summary], the latest Message from the Director [Sharon Press - but you knew that] and, of course, my Case and Comment article starting on page 16 [I hope you like it and find it informative].

Please don’t forget to attend the annual DRC Conference August 25 – 27, 2005 [that’s next week], Great Expectations, in Orlando. Here’s the conference brochure and a registration form. If you attend, please find me to say hello at my Friday workshop [A5], 10:30am to noon or at the Mediation Training Center table!

I begin my latest 40 hour Circuit Civil Mediation Certification Training Program tomorrow which ends on Sunday. So, no blogging during the next 5 days and I’ll be back on Monday.

Have a good rest of the week, an enjoyable weekend, and “see you” Monday!

To email me, click Perry S. Itkin.

What’s Wrong With This Picture?

Okay, it’s not exactly a picture but there is something wrong. According to this article in Jacksonville’s Daily News and Financial Record, it’s a good idea [and I agree] to read court orders referring parties to mediation and it references segments of the court order in that judicial circuit. So, what’s wrong here? Hint: F.S. 44.302 referenced in the court order no longer exists! It has been replaced by F.S. 44.102. All to say, if you do read the Mediation Orders you receive from the court you might want to check the rule and statutory references to see if they are the current ones. Actually, there’s another reason to check those references and that is to keep up to date since, as you know, mediators have an ethical obligation to do so under Florida’s Rules for Certified and Court-Appointed Mediators:

Rule 10.520. Compliance with Authority.

A mediator shall comply with all statutes, court rules, local court rules, and administrative orders relevant to the practice of mediation.

To email me, click Perry S. Itkin.

Should Oscar the Grouch Mediate This One?

Maybe he has subject matter expertise! According to this article in the Navhind Times, the absentee mediator in this dispute is “the government” – specifically, where should the capital city garbage be dumped [i.e., where should the landfill be located] – not surprisingly the attitude is, you know, not in my backyard. So, how about mediation? In Florida we actually have a statute which is designed to resolve intergovernmental disputes, Chapter 164, Florida Statutes. The process is interesting. Take a look at the prerequisites for the mediation conference and also the duty to negotiate and the obligation to participate in the process in “good faith” [How, and by whom, is that measured?] as well as the consequences for not doing so [F.S. 164.1055 and F.S. 164.1058, for example].

I know, it’s a lot to read but the statute adds twists [some good and some, well, not so good] to the process!

Have a nice weekend!

To mail me, click Perry S. Itkin.

Reservation of Jurisdiction to Award Attorneys Fees – Ooops!

In May v. May, 2005 Fla. App. LEXIS 12430 [Fla. 2nd DCA 2005] the Former Wife prevailed on her Motion to Enforce Mediation Agreement in which she requested an award of attorney’s fees. The court, at the request of counsel for both parties, agreed to determine the issue of attorney's fees at a post-hearing time – however, the court inadvertently did not do so in its order. The Second District Court of Appeal reversed and remanded for the court to enter a corrected order reserving jurisdiction to consider the Former Wife’s request for attorney's fees.

To email me, click Perry S. Itkin.

Mediating With Mother Nature

Well, not exactly. How about mediating the tsunami? Ok, ok – how about training to mediate tsunami related disputes. According to this article in the Daily News [not the one from New York], the Legal Aid Commission of Sri Lanka in collaboration with the Alternative Disputes Resolution Institute commenced a Mediator Trainer Training Program. The model is based on Christopher Moore’s model. Moore wrote The Mediation Process: Practical Strategies for Resolving Conflict.

The article is interesting not only from the practical perspective but also as a look into how another country views mediation. By the way, did you know that Sri Lanka is the second most litigious society in the world?

To email me, click Perry S. Itkin.

Success In Mediation Is Not Just About Settlement!

This is not heresy. It’s actually enlightened thinking by an appellate court in England according to this article in The Lawyer. Take a look – it’s interesting! Are judges here on par with this line of thought?

There’s another aspect to this also as set forth in Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.200, Scope and Purpose which states in part:

Whether the parties involved in a mediation choose to resolve their dispute is secondary in importance to whether the mediator conducts the mediation in accordance with these ethical standards.

See, we’re not alone in our thinking – the English court takes another step forward!

To email me, click Perry S. Itkin.

When Is An Agreement Not An Agreement?

In Dorsett v. Dorsett, 902 So. 2d 947 [Fla. 4th DCA 2005] the parties attended court-ordered mediation. The Mediation Conference Report stated that the parties were still negotiating and may return to mediation [they didn’t]. Months later the former husband filed a Motion to Enforce Settlement Agreement, claiming that at the office of the Wife's attorney, the parties and their attorneys settled, resolved and agreed upon all issues in the case and the former Wife won’t abide by it. The former Husband admitted there was no signed agreement and claimed there was an oral agreement which the trial judge adopted. Some of the terms of this adopted oral “agreement” related to the parties’ minor child. The Fourth District Court of Appeal held that “a trial court’s responsibility to the child cannot be abdicated to any parent, any expert” and that “a court is not bound by any agreement between the parents”.

So, although the parties may create a mediation agreement on some or all parenting issues, the court must still approve it – the parties should be aware of this, don’t you think?

To email me, click Perry S. Itkin.

“What’s the Meaning of . . . ?”

One of principles in the communication module of mediation training is learning to avoid jargon. That’s also a good idea in practice. This article in the New York Law Journal is an excellent example why. A trial judge in New York threw out [how’s that for “jargon-less” writing] a jury verdict after it was disclosed that the jury consulted a dictionary to determine the meaning of “preponderance”. Imagine that!

To email me, click Perry S. Itkin.

Hillary Clinton – Mediator!

According to this editorial in Newsday, Hillary Clinton is characterized as a mediator between the Democratic Party’s “left” and the Democratic Leadership Council. Hmm!! As mediators, we’re trained to probe for, uncover and discuss a party’s hidden agenda. How about some mediator introspection, though? Does a mediator have a hidden agenda? How about Hillary [maybe it’s not so hidden]?!? Good luck, Senator Clinton!

To email me, click Perry S. Itkin.

A Postscript to Yesterday’s Post

By the way, Florida’s Rules of Civil Procedure, Rule 1.730(b) [Completion of Mediation; Agreement] and Florida’s Family Law Rules of Procedure, Rule 12.740(f)(1) [Family Mediation; Report on Agreement] provide that the agreement reached in mediation is required to be signed by the parties and their counsel, if any.

The Rules of Civil Procedure identify 3 ways to memorialize an agreement:

• Reduce it to writing
• Electronically recorded [transcript filed with the court]
• Stenographically recorded [transcript filed with the court]

The Florida Family Law Rules of Procedure likewise identify 3 ways to memorialize an agreement:

• Reduce it to writing
• Electronically recorded [made under oath or affirmed; transcript filed with the court]
• Stenographically recorded [made under oath or affirmed; transcript filed with the court]

So, how is it possible that mediation notes, even coupled with testimony, could conceivably rise to the level of an enforceable mediation agreement? Do the Rules mean what they say – or not? Maybe my mantra, Nothing is as it seems nor is it otherwise, actually is a truism. The requirements of the Rules were not mentioned in the opinion. Hmmm!!

What do you think?

To email me, click Perry S. Itkin.

Warning: Mediation Notes Alone Do Not Constitute An Agreement, But . . . !

In Borck v. Borck, 2005 Fla. App. LEXIS 11049 [Fla. 4th DCA 2005] involving competing petitions for the appointment of a guardian, the trial court ordered the intended ward’s family members and other entities to produce financial information and tax returns. The order was based solely on handwritten mediation notes [it’s not clear from the opinion whose notes they were]. The order was entered without an evidentiary hearing as to the scope of the “agreement” and was based on the notes and one attorney’s representation of the “agreement”. The Fourth District Court of Appeal quashed the trial judge’s order without prejudice to the court holding an evidentiary hearing.

The subtle [well, maybe not so subtle] implication here, however, is that mediation notes coupled with appropriate testimony may rise to the level of an enforceable agreement. Any thoughts on how this might affect your note-taking?

So, what do you do with your mediator notes? Okay, what do you do with, or say about, the notes of the mediation participants, if anything? Good luck, by the way, in trying to collect the notes of the mediation participants! I am not, repeat not, suggesting you place yourself in harm’s way. By the way, there is no mention in the opinion about confidentiality [this is a hint].

To email me, click Perry S. Itkin.

Enforcing Settlement Agreement v. Attorney-Client Privilege

According to this article in the New York Law Journal, a Federal Court judge in the Southern District of New York has ruled in G-I Holdings, Inc. v. Baron & Budd, et al., 2005 U.S. Dist. LEXIS 14128 [S.D.N.Y. July 13, 2005] that a party may not pierce the attorney-client privilege to discover what advice the attorneys gave to the clients about complying with a settlement agreement which provided, “Plaintiff’s Counsel . . . agrees, unless in the exercise of its independent professional judgment it determines otherwise, to recommend that its clients seriously consider [the] alternative dispute resolution procedure [described in paragraph 7. . .]”. Is this enforceable? How?

The judge ruled that “The problem of how to enforce [the above paragraph] was foreseeable, and [the] failure to insist on contractual terms that specified an enforcement mechanism does not justify the invasion into the privilege that [the party] now seeks.”

What would you do to stimulate the parties’ thinking during mediation as to how a breach of such a provision could be managed?

Have a pleasant weekend!

To email me, click Perry S. Itkin.

“This Is An Easy Case For You To Mediate!”

I don’t know what you think when one of the parties or attorneys makes on opening comment like that. To me, it’s like the “kiss of death” – easy is in the eye of the beholder, so to speak. Anyway, when, after much laboring, the parties reach an agreement verbally, more real mediating lies ahead – preparing the written agreement. As an aside, don’t let one of the parties lull you into a false sense of security by asking, before the agreement is written, “How much do we owe you?”. The sagacious answer is, “I’ll tell you after the agreement is prepared and signed.” But, you already knew that, right?!?

Take a look at this article in the Corvallis Gazette-Times which illustrates the point. There, one side presented a short form template agreement and the other side presented a seven page settlement document. Hmmmm!!!!!
How close do you think they are?

To email me, click Perry S. Itkin.

Divorce Mediator Indicted!

I bet that got your attention! Theft + fraud + unauthorized practice of law + using mediation service to pick up dates = indictment. Wait, wait, wait, calm your curiosity down – it was not a Florida mediator! According to this article in Phoenix New Times, a disbarred Vermont attorney opened a mediation business in Arizona, titled “Divorce With Dignity” or “Divorce Associates”. His ads said he would “settle all issues – no trial – no court appearance – be divorced in 90 days – low cost – low stress – judge approved – focus on best interests of children – attorney supervised.” See any problems here? Really, the article is worth reading, as is this one for more information. This gives criminal mediation new meaning.

To email me, click Perry S. Itkin.

Pick Up the Phone!

Florida Rules of Civil Procedure, Rule 1.720(b) provides for sanctions for failure to appear at a duly noticed mediation conference.

(b) 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. [Emphasis added.]

Has this ever happened to you? One side shows up at mediation and the other doesn’t – no prior warning. Lots of folks are not happy, to say the least. However, before the appearing party rushes to file sanctions, it’s at least worth making a phone call to the non-appearing attorney as was suggested by the Fourth District Court of Appeal in Giron v. Fairways of Sunrise Homeowners’ Association, Inc., 30 Fla. L. Weekly D 1426 [Fla. 4th DCA 2005]. Although it’s not a case involving mediation, the principle of professionalism is always applicable.

A good practice for the mediator would be to call the parties a day or more prior to the scheduled mediation to confirm everyone’s attendance [and, of course, to remind the parties to bring a check] – but, you knew that!! Right?!?

To email me, click Perry S. Itkin.

“I See What You’re Saying!”

What does that phrase tell you – the responder is a visual communicator. That’s one choice what’s another? How about this – the speaker is also a visual communicator. Why? They gesture while verbalizing as depicted in this video promo from Linkage, Inc. appropriately titled Gestures.
It’s fun – take a look!

To email me, click Perry S. Itkin.

Building Rapport = 1st Impressions

One of mediation training’s learning objectives is for class members to understand the importance of a mediator demonstrating empathy, building rapport and establishing trust with mediation participants. That’s a detailed way of illustrating the importance of 1st impressions! In this article from Linkage, Inc. you’ll find some useful tips on making a fantastic 1st impression.

Try some or all of them in your next mediation and keep me posted on your triumphs!

By the way, no posts on Thursday or Friday since I will be out of town. So, let me be the first to wish you a very pleasant weekend. Until Monday!

To email me, click Perry S. Itkin.

Mediation and Its Relationship to Attorney’s Fee Award

An agreement reached in a Workers’ Compensation mediation which clarified an ambiguity [in favor of the claimant] as to whether the carrier transferred the claimant’s care from his treating physician to another physician resulted in the First District Court of Appeal decision in Mylock v. Champion International, et al., 2005 Fla. App. LEXIS 11003 [Fla. 1st DCA 2005] that the claimant’s attorney was successful and entitled to an attorney’s fee award.

To email me, click Perry S. Itkin.

How Do You Build A “Tree”?

It’s not exactly a biological organism tree to which I’m referring and, by the way, of what value is this “tree” in mediation? Okay, it’s a “decision tree” which takes a complex problem, diagrams certain key points and possible outcomes [sound familiar], and captures the experience and judgments of the lawyers in analyzing different options for settlement and risks of litigation. Voilà – you have just built a tree! It’s a useful tool in valuing a case according to this article [the “decision tree” can be built manually or with the assistance of computer software] which is a good overview of a Litigation Risk Analysis™ tool.

To email me, click Perry S. Itkin.

Is This What Happens to Family Mediators Who Burn Out?!?

According to this movie review in the Guardian Unlimited, “Wedding Crashers” is being released today. It’s about two lawyers who practice matrimonial mediation and who, after witnessing the horrors of relationships which have “gone bad”, become phobic about commitments. These 2 Casanovas crash weddings and . . . . Couldn’t Hollywood have chosen a profession other than mediation? Is this the way to educate the publice about mediation? Anyway, prepare yourselves for comments from those who see this movie. It’s tough enough when pro se parties get their legal education from the “Common Law of Television” – what are they going to think [please, at least think!] about mediation?

Have a pleasant weekend!

To email me, click Perry S. Itkin.

What Kind of American English Do You Speak?

One of mediation’s general tenets is to reduce obstacles to communication. Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.220 Mediator’s Role and Rule 10.230 Mediation Concepts. It follows that not only do we need to understand, but we also must be understood. Frequently I’m asked by English speaking individuals interested in becoming mediators if their fluency in another language, Spanish for example, would be an asset. Of course, the answer is yes followed by what kind of Spanish do you speak – Spanish Spanish [okay, okay Castilian], Argentine Spanish, Cuban Spanish, Mexican Spanish, Puerto Rican Spanish, Venezuelan Spanish, etc. – you get the idea.

All to say [pun intended], have you ever wondered what kind of American English you speak? Here’s a short on-line 20 question quiz designed to answer the question. Try it, it’s fun! So, is your American English Linguistic Profile “Yankee”, “General American”, “Dixie”, “Midwestern” or “Upper Midwestern”? Any cultural diversity thoughts here?

To email me, click Perry S. Itkin.

Mediation Cancellations – Another Perspective!

An occupational hazard for mediators is the dreaded cancellation – loss of time and money. However, when a mediation is cancelled have you ever paused to think about the effect of that on the mediants [I made that term up!]? For some insight into the answer, read this article in The Advertiser. Mediation is not just about the professionals!

To email me, click Perry S. Itkin.

Documentaries in Mediation

What is negotiation? How about, negotiation is communication for the purpose of persuasion. Ok, ok – you knew that. How about this, “1,000 = W that a P is W”. What does this mean? Here’s a clue. Settlement documentaries are more than just marketing tools they speak volumes [have you figured out the equation yet?]. According to this article in the Tampa Bay Business Journal, settlement documentaries help get serious negotiation points across while simultaneously being discerningly entertaining. What’s in your microwave?!?

If you still need help with the equation, email me and I’ll give you the answer!

Perry

County Court Mediator Volunteers Needed!

According to this article in Hernando Today, the Fifth Judicial Circuit [Lake, Citrus, Marion, Sumter and Hernando Counties, Florida] is offering small claims mediation. Actually, it’s being launched in Hernando [effective July 1] and Sumter Counties [soon] after successes in existing mediation programs in the other 3 counties within the judicial circuit. The County Court needs volunteers, either already certified County Court Mediators or those individuals willing to be trained to become certified County Court Mediators. Contact information is contained in the article.

Anyone interested? Please say “yes”!

To email me, click Perry S. Itkin.

Conflict Resolution – A Video Game for Children + Something for Adults

The Federal Mediation and Conciliation Service has developed a video game for children that teaches them Conflict Resolution as part of an FMCS initiative to combat youth violence according to this report from ABC News. This is an excellent idea!

Now, something for the adults – the Equal Employment Opportunity Commission [EEOC] is offering a new video 10 Reasons to Mediate which introduces businesses to the EEOC’s National Mediation Program. It’s free and might be worthwhile taking a look at.

To email me, click Perry S. Itkin.

Who Should Not Participate in Mediation!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.410. Balanced Process provides:

A mediator shall conduct mediation sessions in an even-handed, balanced manner. A mediator shall promote mutual respect among the mediation participants throughout the mediation process and encourage the participants to conduct themselves in a collaborative, non-coercive, and non-adversarial manner. [Emphasis added.]

What if one of the mediation participants resists our diligent efforts to fulfill this often challenging task – such as the Michigan lawyer who was barred from the courthouse due to his conduct [imagine that!] as reported in this article in The Macomb Daily? What would you do?

To email me, click Perry S. Itkin.

How Much Does a Penny Weigh?

Actually, try weighing 100,000 pennies! In In Re: Marriage of Powell, Case No. 11-04-00142-CV [TX 11th Ct. of Appeals, 2005] the former husband was ordered to pay $1,000.00 in attorney’s fees to his former wife’s lawyer. He made the payment – you guessed it, in pennies! According to this article in The Texas Lawyer, he contended he was complying with the court order in his own small way [really small!]. The trial court found this conduct to be “frivolous and ridiculous”, although not contemptuous, and ordered the former husband to pay additional attorney's fees and expenses by cashier’s check, money order, or cash [in specified denominations].

Remember, the “devil is in the _____” and, believe it or not, when an agreement requires payment, unless it clearly specifies some other kind of money, the exact performance required is payment by legal tender [i.e., cash] and a check is not legal tender! So, did he comply?

All to say, in fulfilling our responsibility to discuss the implementation of a mediated settlement agreement [Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420(c) Closure], should we ask “what does payment mean, or, in what form will the payment be?” If the answer is “in pennies”, then . . . .

To email me, click Perry S. Itkin.

Sandra Day O’Connor – Mediator for the U.S. Supreme Court!

One of the big news stories, as reported in The New York Times, over this past July 4th Holiday Weekend was the announcement by U.S. Supreme Court Justice Sandra Day O’Connor that she is retiring. Referred to as the “Crucial Swing Vote”, Justice O’Connor has provided incredibly valuable and practical lessons for mediators in the distinctive way she thinks as presented in this 2001 New York Times Magazine article.

Also, according to this article in The Reporter, Justice O’Connor was viewed as the Court’s mediator.

What techniques, skills, and strategies can you adapt to, or apply in, your mediation practice after reading the 2001 article?

To email me, click Perry S. Itkin.

“Florida Mediator” – Now Searchable!

I’ve added a new searchable feature to Florida Mediator to make it even more useful for you. If you scroll down a little, on the right panel you’ll find a familiar looking Google search box. From here you can search Florida Mediator! How about that!

Please let me know how you like this addition!

To email me, click Perry S. Itkin.

“Is Everything We Say in Mediation Confidential?”

You know the answer and it is . . . . Here’s the latest case providing an exception to confidentiality of communications in a court-ordered mediation. In Quintana v. Jenne, Case No. 03-15443, [11th Cir. 2005], a case from the Southern District of Florida, the issue involved an award of attorney’s fees to a prevailing defendant and whether one of plaintiff’s claims was frivolous.

The defendant did not deny making an offer of settlement during the mediation but maintained that any settlement offer should not be considered because it was made during the court-ordered mediation. A critical factor for the appellate court in evaluating whether a settlement offer militates against a determination of frivolity was the amount of the offer.

Note that Local Rule 16.2 for the U.S. District Court for the Southern District of Florida provides for confidentiality of communications in mediation [PDF page 54 which is page 37 of the Rules]. The Form Order of Referral to Mediation and the Comments which follow the Local Rules provide interesting reading on confidentiality.

All to say, exceptions are just that – exceptions [clever, don’t you think!].

Have a very pleasant and safe 4th of July Holiday Weekend!

To email me, click Perry S. Itkin.

Here’s a Valuable Tool for You!

Florida Mediators.org is website that allows visitors requiring the services of a qualified mediator to quickly identify suitable professionals to help settle their dispute. Users can easily search by locality, qualifications, background/case experience and date availability [this expedites the scheduling process by trial lawyers and law firm staffers who schedule mediations]. Your Professional Profile™ and Availability Calendar are online as a “one-stop shop” to facilitate getting yourself professionally “out there” [i.e., Planet Earth – before “War of the Worlds”!].

Plus, like Mom, it even reminds you! Well . . . it reminds you via email to update your calendar when you have not done that for awhile!

Take a look – it’s worth investigating!

To email me, click Perry S. Itkin.

“We Agree!” – Now What?

Like the Carpenters [Remember them? Say ‘yes’!] sang, “We’ve Only Just Begun”. Here’s why - one of the mediator’s ethical responsibilities is to assist the parties in the development of the terms of agreement. Development is a 4 part “ion-process” [I made that up!]:

• Discussion
• Formalization
• Implementation
• Memorialization

As prescribed in Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420 Conduct of Mediation, (c) 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.

The parties’ understandings of who is obligated to do what, by when, how, where, and sometimes why, all clearly written [i.e., unambiguous, detailed content], is critical in order to avoid future problems such as is illustrated in this article in The Citrus County Chronicle.

To email me, click Perry S. Itkin.

Listen to What the Mediator “Advises” or Else! Whaaat?!?

A Massachusetts [could this happen in Florida?] trial judge denied a party’s motion for summary judgment partly on the basis that the defendant insurance company’s failure to follow the advice of several different mediators [notice the plural here] over a four year period could constitute evidence of bad faith refusal to settle in the case. The judge’s lengthy opinion [it takes some time to download] in Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company, Civil Action No. 95-3079-A [Mass. Superior Court 2004] contains the following language on pages 11 and 12:

“At least one factor deprives [Wausau] of the conclusiveness necessary for summary judgment . . .: the recommendation of the mediator James Lynch that Wausau should make an offer in the vicinity of the policy limit.”

“The detailed chronology recited above contains abundant indications of issues of irrational or bad faith behavior . . . includ[ing] . . . Wausau’s imperviousness to the views of mediator Steadman...[and] Wausau’s continuing immobility against the views of mediator Shubow”.

Hmmm! Do you have a problem with mediators giving advice? Take a look at Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.370 Professional Advice Or Opinions

(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce 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.

Wait!!! What about the confidentiality of mediation communications? Take another look at the confidentiality provisions of Florida’s Mediation Confidentiality and Privilege Act, especially F.S. 44.405.

And, in the spirit of mediation, can you think of anything else?

You might like to know that this decision has been appealed.

To email me, click Perry S. Itkin.
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What is “Constructive Advocacy”?

“You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone!”

Imagine family law advocacy described as a process of candor, courtesy, cooperation, efficiency, less cost [financial and emotional], mutually acceptable resolutions, reduced stress, reduced waste of resources and respect. Don’t these principles sound familiar to mediators?

“Constructive advocacy” is a counseling, problem-solving approach for people in need of help in resolving difficult issues and conflicts within the family. This approach includes consideration of all available means of settling disputes – including, [guess what?!?] mediation.

Where does all of this come from? The Family Law Section of The Florida Bar has published Bounds of Advocacy: Goals for Family Lawyers as a guide to Family Lawyers confronting professional and ethical dilemmas. Among the global tenets is “constructive advocacy” as the goal of all family law attorneys.

For some serious educational fun, while reading Bounds of Advocacy [it really is worth reading], try substituting the word “Mediator” for the word “Attorney” where you believe the Goal would have application to Mediators [especially in Sections 2 and 3] and learn just how comfortable the substitution feels. It’s an interesting exercise!

Thank you Family Law Section for publishing this for Family Lawyers – it’s also a good tool for Family Mediators to have at mediation and to share with those engaging in “Destructive Advocacy”!

To email me, click Perry S. Itkin.
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“Think About It!”

During mediation we are required to think [i.e. make decisions] about such matters as which technique to employ, what strategy will work here, why the parties are stuck, whether a party is meaningfully participating in mediation, whether mediation should be adjourned or terminated, and so on. Even though the parties are the primary substantive decision-makers in mediation, we are the primary procedural decision-makers [mediators control the procedures to be followed during mediation].

This article appearing in the June, 2005 Link and Learn Newsletter is a very helpful 7 step decision-making guide which we can use during mediation. It has an organizational development focus and is quite adaptable for mediation. Take a look and “think about it!”

Have a pleasant weekend!

To email me, click Perry S. Itkin.
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Just What is “Nonverbal Conduct Intended to Make an Assertion”?!?

Florida’s Mediation Confidentiality and Privilege Act defines “Mediation Communication” [F.S. 44.403(1)] as:

an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication.

How does “nonverbal conduct intended to make an assertion” work in the real world?

At this time, there are no Florida appellate opinions interpreting this phrase. However, Bridges v. Metromedia Steakhouse Company, L.P. d/b/a Ponderosa Steakhouse, 807 N.E.2d 162 [Ind. Ct. App. 2004] in a case of first impression, is instructive for us. One of the main issues is whether the trial court abused its discretion when it allowed an insurance adjuster to testify regarding the extent of Bridges’ injury based upon her observation during the parties’ mediation.

It’s easy to read and interesting!

To email me, click Perry S. Itkin.
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Pre-Suit Circuit Civil Mediation Agreement is Enforceable

We often think of pre-suit mediation as occurring in only Family cases. However, with increasing frequency, Circuit Civil matters are being mediated pre-suit also.

In Fulford v. Drawdy Brothers Constuction, II, Inc., 30 Fla. L. Weekly D 1386 [Fla. 4th DCA 2005] the Fourth District Court of Appeal affirmed the trial court’s entry of a temporary injunction enforcing a pre-suit mediated settlement agreement which modified a non-compete agreement between a former employer and former employee.

How about that!

To email me, click Perry S. Itkin.
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How Do You Make a Sandwich?

We would all agree [I hope] that communication is a critical component of mediation. In fact, Florida’s Rules for Certified and Court-Appointed Mediators,

Rule 10.220, Mediator's Role provides in part “The role of the mediator is to reduce obstacles to communication . . .”

and

Rule 10.230, Mediation Concepts provides in part “Mediation is based on concepts of communication, negotiation, facilitation, and problem-solving . . . .”

Of course, you know how to make a sandwich – right? How would you explain [i.e. communicate] that to an extra-terrestrial? No, really, think about it!! For example, you might start by saying, “Take 2 slices of bread.” Stop! You’re assuming the extra-terrestrial [we’ll call it E.T. – not the movie] knows what bread is, let alone what a slice of bread is. Get the idea!

Well, if you want to actually learn how to communicate and mediate with E.T., here’s a course for you [I am not making this up]. Once you get through the basics, and after the mid-semester break, on October 26th you’ll learn how to apply principles of Conflict Resolution and Mediation to E.T. affairs.

It’s not too late to register! If you do enroll, please let me know how you do on the final exam!

To email me, click Perry S. Itkin.
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“Am I Qualified to Be a Mediator? What’s New?”

The Florida Supreme Court ADR Rules and Policy Committee [on which I serve] filed its Petition to amend Florida’s Rules for Certified and Court-Appointed Mediators relating to revising the qualifications for mediator certification and other matters. The proposed amendments are significant. In addition a proposed Administrative Order has been filed with the Petition. In order to assist in your understanding of the point system, here’s a chart reflecting the proposed changes.

This proposal is extremely important and each of the linked documents is worthwhile reading!

The case number is SC05-998. Written comments and requests for oral argument are due at the Florida Supreme Court no later than August 1, 2005. If oral argument is scheduled, it’s not likely to occur before September, 2005.

What do you think about the proposed revisions?

To email me, click Perry S. Itkin.
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Governor Signs the “Glitch Bill” – Impact on Mediation

The Governor has signed a bill relating to the State Judicial System, otherwise known as the “Glitch Bill” - Chapter 2005-236, Florida Statutes. It impacts mediation in several ways:

• Removes the county obligation to fund mediation for indigents.
• Allows the courts to charge for scheduled mediation sessions - although not explicit, it implies that the courts can charge cancellation fees [this is a big deal for private mediators as well].

In addition, since many mediators are also qualified [the Florida Supreme Court does not certify] arbitrators, this would be of interest: F.S. 44.103(3) was amended to cap the arbitrator’s per diem fee to no more than $1,500.00, unless the parties agree otherwise.

The bill is lengthy, so just go to pages 73 -75 to find the changes to Chapter 44. The effective date is July 1, 2005 [less than 2 weeks from now].

If you’d like a copy of the completely revised Chapter 44, with the new amendments included, please email me.

To email me, click Perry S. Itkin.
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Child Abuse as a Defense?

It’s not what you’re thinking! In the case of S.J.C. v. State of Florida, 30 Fla. L. Weekly D 1257 [Fla. 2nd DCA 2005], the Second District Court of Appeal presents an unusual case, discussing child abuse as a defense by a minor child to the criminal charge of battery [on his mother] – it shows how a parent, intending to use corporal punishment on a child, may cause a child to reasonably expect to be injured sufficient to invoke that child’s right to use self-defense. Hmmm, something to think about when mediators hear someone raise “child abuse” during mediation.

By the way, the Mediation Training Center is a collaborating organization in this year’s Dispute Resolution Center Annual Conference, August 25 – 27, 2005 in Orlando, Florida. Here’s the Conference Brochure and here’s the Registration Form. Looks like a winner!

To email me, click Perry S. Itkin.
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Timing is Everything!

Here’s something new for you: “post verdict-prejudgment mediation”. According to this story in the Daily Business Review, one of Florida’s alleged most infamous organized crime figures won a $13 million dollar civil racketeering verdict [is turnabout really fair play?]. The defense had made a motion for directed verdict on which the judge reserved ruling. The judge then “invited” a defense motion to set aside the jury verdict [that’s a clue] and ordered the parties to attend [you’re so smart, you guessed it!] mediation. Is this sort of like arb-med only called “trial-med”, or something like that?

To email me, click Perry S. Itkin.
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“So, How Do I Get Business?”

According to this helpful article in Business Week, the lesson is to network and think outside the box! We ask mediants to do that [think outside the box, that is], why shouldn’t we network like that too?

To email me, click Perry S. Itkin.
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Neatness Counts!

Imagine a statute that requires you to be neat in writing a mediation agreement – is this for real? Well, it is and you can find such a statute in Chapter 2005-141 of the Florida Statutes [SB 1312] on page 13, lines 1 – 29, relating to Recreational Vehicles. Actually, the statute gives mediators excellent guidance in reminding us that “the devil is in the details” in drafting an agreement and in setting forth times for performance – good lessons to be learned by reading this section. The statute, by the way, was effective June 3, 2005.

To email me, click Perry S. Itkin.
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“Transsexual Ex-Husband” and “Ex-Wife” Create Their Own Law!

Margo became Michael after a sex change operation in 1987. Michael “married” Linda in 1989. They had 2 children – well not exactly – Michael adopted Linda’s son from a prior relationship and Linda gave birth, in 1992, to a daughter following artificial insemination with sperm from Michael’s brother.

They “divorced” ten years later and Michael [who was Margo] was awarded custody of both children. Linda appealed and in Kantaras v. Kantaras, 884 So.2d 155 [Fla. 2nd DCA 2004], the appellate court in a case of first impression in Florida held that there was no valid marriage and remanded the case to the trial court to declare the marriage void ab initio. What about the children? The appellate court said the legal status of the children was an issue for the trial court to examine.

The parties decided to go to [you guessed it] mediation! The parties agreed to a shared parental responsibility arrangement. Linda makes the educational decisions for the 13 and 15 year old children and Michael makes the extracurricular activities decisions.

According to this article in the HeraldTribune, the trial court judge approved the mediated settlement agreement. Did Michael and Margo create their own legal rights and law? What if a dispute arises between them under the agreement, is the agreement enforceable? What do you think?

To email me, click Perry S. Itkin.
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“Great Expectations” - Dispute Resolution Center’s 14th Annual Conference

The Dispute Resolution Center’s 14th Annual Conference for Mediators and Arbitrators, Great Expectations, will be held August 25 - 27, 2005, at the Rosen Centre in Orlando, Florida. Here’s the Annual Conference Brochure and the Registration Form. Pay particular attention to page 6 of the Brochure, Workshop A5!

This is an excellent conference – reserve the dates, reserve your room, enjoy the conference and continue to learn!

To email me, click Perry S. Itkin.
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Florida Supreme Court Amends Family Law Rules of Procedure

The Florida Supreme Court in its opinion In Re: Amendments to the Florida Family Law Rules of Procedure, 30 Fla. L. Weekly S 408 [Fla. 2005] amended, among other rules, those pertaining to Family Mediation. The amendments are effective June 2, 2005.

Rule 12.740, Family Mediation, was amended to reference section 44.108, Florida Statutes, which was amended in 2004 to provide a fee schedule for court-ordered mediation services.

Rule 12.741, Mediation Rules, was amended to recognize the family court's authority under section 44.406, Florida Statutes, to order sanctions for violations of mediation confidentiality provisions. This amendment recognizes the 2004 Legislature's creation of the Mediation Confidentiality and Privilege Act, sections 44.401 - 44.406, Florida Statutes (2004). The rule was further amended to provide that any violation of a confidentiality provision under section 44.405, Florida Statutes, must be knowing and willful for the court to impose sanctions under this rule.

The pertinent pages of the opinion reflecting the above rule changes are pages 36 – 39.

To email me, click Perry S. Itkin.
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Good Luck, Mr. President!

According to this article in Turkish Weekly, President George W. Bush may become a mediator between Turkey and Armenia. Good Luck, Mr. President! [I have to be neutral here and not give my professional or personal opinion – Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Professional Advice Or Opinion.]

What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.630, Professional Competence which states:

A mediator shall acquire and maintain professional competence in mediation. A mediator shall regularly participate in educational activities promoting professional growth.

Okay, okay – if not that, then what about the following:

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.640. Skill and Experience.

A mediator shall decline an appointment, withdraw, or request appropriate assistance when the facts and circumstances of the case are beyond the mediator’s skill or experience.

So, what do you think?!? Would mediation training be helpful?!? How about co-mediation?!? Any volunteers?

To email me, click Perry S. Itkin.
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Some Help for Mediating with Pro Se Parties

The Rock County [Wisconsin] Mediation and Family Court Services unit has a nice website with good materials for mediating with pro se parties. Their forms and other information provide ideas that are adaptable to your individual family mediation practice. It’s worth spending some time there [at the website, that is].

No blogging last Thursday [setting up for our CME Seminar] or Friday [the day of the CME Seminar]. The Seminar was terrific and enthusiastically received! Thank you to all who attended!

To email me, click Perry S. Itkin.
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The Value of An Apology

Sometimes “it’s not about the money” or so the saying goes. Is there any validity to that phrase, though, and does an apology have value in mediation? Well, not just in mediation – that’s our focus, however. A good example of the value of an apology is reported in this story in the Arizona Daily Star.

What’s curious is even though the City Attorney and Risk Manager said they couldn’t discuss the case because of the pending lawsuit, how is it that they were seemingly comfortable reporting to the press the statements and negotiations made during mediation? Plaintiff’s counsel had the same comfort level. What about confidentiality folks? Whose privilege is it anyway?

To email me, click Perry S. Itkin.
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