Tax Language In Settlement Agreements – Is It Binding [On Whom]?

According to this article in Tax Notes published by Tax Analysts, litigants attempt to characterize and categorize tax consequences through tax allocation language and tax reporting language. Generally this is a good idea because it helps to avoid misunderstandings and disappointment, and sometimes, even further litigation.

However, is this language binding and, if so, on whom – the parties; the court; the state taxing authorities; the IRS? Read this interesting article to find out.

To email me, click Perry S. Itkin.

The FBI Is Watching You And Your Bagels, Doughnuts And Fruitcakes!

Ok, not exactly you but what about mediator gift giving – is that a Federal crime? It could be. The Star-Ledger reports in this article that the FBI is investigating the state board responsible for hearing labor disputes, after New Jersey’s ethics commission found the board’s employees improperly accepted gifts and cash from private arbitrators and mediators seeking work, according to officials familiar with the probe.

Remember, Florida Rules for Certified and Court-Appointed Mediators provides:

Rule 10.330(c) Impartiality, Gifts and Solicitation.

A mediator shall neither give nor accept a gift, favor, loan, or other item of value in any mediation process. During the mediation process, a mediator shall not solicit or otherwise attempt to procure future professional services.

The Committee Notes suggest that subdivision (c) does not preclude a mediator from giving or accepting de minimis gifts or incidental items provided to facilitate the mediation.

To email me, click Perry S. Itkin.

MEAC Opinion 2005-005 Now Online!

Here’s a summary of MEAC Opinion 2005-005 which addresses a confidentiality inquiry in the context of a grievance involving a mediator in a court based mediation unit. A conflict issue is also discussed.

1. While a mediation unit is not a mediator per se, many of the communications made to the mediation unit would be included under the umbrella of confidentiality. Each co-mediator is to be treated as a mediator subject to the Florida Mediation Confidentiality and Privilege Act. The Committee declines to answer the question whether the party breached confidentiality as being beyond its jurisdiction.

2 and 3. Assuming the party has affirmatively requested that the complaint be handled at the trial court level, the mediator may reveal mediation communications to the mediation office charged with investigating the conduct.

4. Revelations made by a mediator in furtherance of a grievance investigation should be kept in a separate file independent from the court file.

5. The relationship described in the question would not necessarily be a “clear conflict” requiring the withdrawal of the mediator regardless of the express agreement of the parties. However, if the mediator is no longer impartial or the parties request that the mediator no longer continue, the mediator is required to withdraw from the mediation.

6. A different mediator within the mediation unit may mediate if all parties, being aware of the relationship, are agreeable to proceeding.

To email me, click Perry S. Itkin.

Mediators Are Critical Thinkers Too!

Athough this Critical Thinking for Managers: A Manifesto article appearing on Change This is geared toward managers, it is full of great ideas for mediators to learn how to be what we do [Huh?!?] – think critically!

Take a look, I’ll think you’ll enjoy it! It’s a PDF download.

To email me, click Perry S. Itkin.

Clarence Darrow And Mediation

Almost 70 years ago, in May, 1936, Clarence Darrow wrote an article for Esquire Magazine entitled How to Pick a Jury.

He concluded with:

“When lawyers and courts, and laymen, accept the scientific theory which the physicians forced upon the world long years ago, then men will examine each so-called delinquency until they discover its cause, and then learn how to remove the cause. This requires sympathy, humanity, love of one’s fellow-man, and a strong faith in the power of knowledge and experience to conquer the maladies of men. The forum of the lawyers may then grow smaller, the courthouse may lose its spell, but the world will profit a thousand fold by a kindlier and more understanding relation toward all humankind.”

After reading the article, don’t you think he was actually making an argument in favor of mediation?

To email me, click Perry S. Itkin.

Structured Settlements – Tell Me More!

Here’s an incredibly helpful, easy to understand article [downloaded as a PDF file] from Bloomberg Wealth Manager which objectively reviews and explains structured settlements. Well worth [pun intended!] reading.

To email me, click Perry S. Itkin.

Intervention In Mediation – Is It Appropriate?

According to this article in Keynoter, a non-party in pending litigation has filed a motion with the trial judge to intervene in a mediation conference involving a property owners’ association which is suing the City of Key West. The reason for the request is that the “intervenors” are concerned that their interests regarding a new traffic plan may be overlooked in the process.

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.320, Nonparticipating Persons states that “[a] mediator shall promote awareness by the parties of the interests of persons affected by actual or potential agreements who are not represented at mediation.”

After you read the article, think about whether this rule would adequately address the concerns of the “intervenors”. Remember, during training, one of the Mediation Process and Techniques learning objectives was to “[i]dentify individuals who are entitled to participate in the mediation conference as well as those non-parties who may need to be present. . . .”

To email me, click Perry S. Itkin.

Florida Supreme Court’s New Rules Regulating The Florida Bar Impacts Mediators And Other Third-Party Neutrals!

In its opinion issued today, the Florida Supreme Court in In Re: Amendments to the Rules Regulating the Florida Bar, Case Number SC04-2246 [Fla. 2006], adopted revisions to, as well as completely new, rules which, among other things, specifically impact lawyers acting as mediators or as other types of third-party neutrals. Specifically, take a look at the amendments to Rule 4-1.12 Former Judge Or Arbitrator, Mediator Or Other Third-Party Neutral [pages 62-63] and a brand new rule, Rule 4-2.4 Lawyer Serving As Third-Party Neutral [pages 84-85].

Rule 4-2.4 Lawyer Serving As Third-Party Neutral provides:

(a) A lawyer serves as a third-party neutral when the lawyer assists 2 or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

So, what additional language will you be including in your mediation confirmation [or engagement] letter? You do use one, right?

Also, the Comments [which are very interesting] to each of the above rules specifically state that “[a] Florida Bar member who is a certified mediator is governed by the applicable law and rules relating to certified mediators”. [Emphasis added.] This blends nicely with Florida Rules for Certified and Court-Appointed Mediators, Rule 10.650 Concurrent Standards:

“Other ethical standards to which a mediator may be professionally bound are not abrogated by these rules. In the course of performing mediation services, however, these rules prevail over any conflicting ethical standards to which a mediator may otherwise be bound.”

All to say, this opinion is a must read!

To email me, click Perry S. Itkin.

“Get Involved And Just Enforce It!”

In the Second District Court of Appeal opinion in Raho of Pass-A-Grille, Inc. v. Pass-A-Grille Beach Motel, Inc., 2006 Fla. App. LEXIS 3976 [Fla. 2nd DCA 2006], an agreement was reached in mediation and it was memorialized in a written mediation agreement [Good move!] which was signed by the parties and their legal counsel [Another good move!] as well as by the mediator [Why? What did that add? Was this a good move? Whose agreement is it anyway?]. Thereafter, a consent order adopting the mediation agreement was signed and rendered by the trial court. Subsequently, various disputes arose between the parties concerning performance under the mediation agreement, and both parties filed motions to enforce the agreement.

Rather than enforcing the various provisions of the agreement, after an evidentiary hearing, the trial court concluded that the mediation agreement did not constitute a “real meeting of the minds” of the parties and upon that basis invalidated the agreement in its entirety.

Not so fast held the appellate court. “Although the mediation agreement was ambiguous in some respects, the parties agreed upon the essential terms and intended the mediation agreement to be binding upon them.” It was incumbent upon the trial court to resolve any ambiguities.

What could the mediator have done differently during the agreement drafting phase of the mediation conference? As always, the devil is in the details!

To email me, click Perry S. Itkin.

“What Conflict? I’m Impartial!”

Although this is an arbitration case [and it’s a long one] involving a claim of evident partiality by the chief arbitrator, RDC Golf of Florida I, Inc., et al. v. George P. Apostolicas, 2006 Fla. App. LEXIS 3696 [Fla. 5th DCA 2006], gives mediators some insight into the objective standard built into Florida Rules for Certified and Court-Appointed Mediators, Rule 10.330, Impartiality:

(a) Generally. A mediator shall maintain impartiality throughout the mediation process. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual.

(b) Withdrawal for Partiality. A mediator shall withdraw from mediation if the mediator is no longer impartial. [The objective standard with emphasis added.]

and the connection to

Rule 10.340, Conflicts of Interest

(a) Generally. A mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.

(b) Burden of Disclosure. The burden of disclosure of any potential conflict of interest rests on the mediator. Disclosure shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest.

(c) Effect of Disclosure. After appropriate disclosure, the mediator may serve if all parties agree. However, if a conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the parties.

The fundamental question is would a reasonable person conclude that the undisclosed circumstances would tend to bias the judgment [substitute “conduct”] of a neutral arbitrator [substitute “mediator”].

Since impartiality is the number one grievance filed against Florida mediators, this case gives us something to think about – don’t you think?

To email me, click Perry S. Itkin.

Perceptions Can Equal Misconceptions And Vice Versa

According to this article in Darwin, misconceptions about ourselves and others can be harmful – but, you knew that! What’s interesting about the article, though, are the two charts capturing potential “emotional ignorance”. There’s something of value to “think” about during your next mediation! Now, I’ll wonder what “they’re” thinking about me as I’m thinking about “them”. Hmmm!!!!

To email me, click Perry S. Itkin.

Don't Forget “Florida Mediator” By Email!

Say, remember you can subscribe [for free] to Florida Mediator and receive it via email. Just scroll down a little and in the right column is an email address box. Fill it in, click on “Subscribe me” [it really is free!] and you will receive a confirming email to verify that it was actually you who is requesting the subscription. Just thought I would point this out to you!

Perry

Mediating With Detective Vic Mackey

You know, Detective Vic Mackey on The Shield. OK, not really him but how about mediation of citizen complaints against police officers. Last year the City of Seattle initiated a mediation program for that precise purpose as reported in this news advisory. It is administered by the Office of Professional Accountability within the Seattle Police Department. According to this article in the Seattle Post-Intelligencer the 7 month young program is off to a slow start. Even so, it’s working! Like good wine and good olive oil, it takes time to mature. Continue with your fine efforts!

To email me, click Perry S. Itkin.

“Now That I’m Retired, I Have Time To Meditate!”

Wait a minute – I actually mis-titled that on purpose to see if you were paying attention and – you were! Excellent! According to this article in The Gainesville Sun, several retired Circuit Court judges have opened The Resolution Center to provide a range of alternative dispute resolution services to supplement the judicial system and to assist the community in resolving neighborhood disputes. Best wishes for much success!

To email me, click Perry S. Itkin.

“So, What Goodies Do You Have To Offer?”

Here’s an interesting post on Legal Underground by a first year litigation associate [Unnamed Associate] on their first attendance at mediation. The
comments are fun too!

What do you offer mediation participants?

To email me, click Perry S. Itkin.

If It’s In Black And White, It Must Be . . . Gray!

Although the main issue in Daniel v. Daniel, 2006 Fla. App. LEXIS 3321[Fla. 4th DCA 2006] was whether the trial court lawfully ordered the husband to file a financial affidavit in this non-simplified dissolution of marriage action [the answer is yes], the Fourth District Court of Appeal’s recitation of the mediation facts teaches us that which we already know – the rules must be followed!

The mediation agreement provided that it is “intended to be a full, final and binding settlement of all issues” in the case and that there had “been full and complete disclosure of all marital assets and liabilities.”

The day after the court entered an order approving the mediation agreement, the Wife filed a motion to set the agreement aside claiming, among other things, that there had been no “full and frank disclosure” of the assets because the Husband had not filed a financial affidavit. In a second motion to set aside the mediation agreement the Wife alleged that the mediation left her “physically and emotionally exhausted” and that a financial affidavit was mandatory because the mediation agreement contemplated “permanent financial relief.”

Context is important. Florida Family Law Rules of Procedure, Rule 12.285(a)(1) requires the filing of a financial affidavit, a “requirement [that] cannot be waived by the parties.”

All to say, just because the mediation agreement recites that there was full disclosure, in the absence of the filing of a financial affidavit what appears to be black and white is, well – gray! Be careful in drafting the mediation agreement. Mediators have an ethical obligation to the parties in “assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(a), Self-Determination, Decision-making, and further, “[a] mediator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting a mediation,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(c), Misrepresentation prohibited.

To email me, click Perry S. Itkin.

You’re A Mediator – Are You A Mind Reader Too?

Of course you are! Among the learning objectives in your training program are to identify and demonstrate appropriate non-verbal communication and to develop an awareness that people differ in how they make decisions, how they process information, and how they communicate.

According to this article [which contains a couple of interesting exercises] in CIO, accurately interpreting the meanings of nonverbal communications, especially facial expressions, is a skill that can make you more effective in your leadership role and then you can decide whether and how to act on the information you obtain just from reading faces.

Imagine that!

To email me, click Perry S. Itkin.

Mediator Testifies As To Party Capacity!

The Tennessee case of McMahan v. McMahan, 2005 Tenn. App. LEXIS 756 (Tenn. App. 2005) is very instructive for mediators on how a mediator might testify as to party capacity without violating confidentiality. There’s also much more of value on other points in the opinion.

The Husband moved to enforce a handwritten mediation agreement which the Wife and Husband and their counsel signed or initialed, when the Wife attempted to repudiate the longhand agreement, arguing that it was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement.

The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The appellate court found that the mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation. The trial court then enforced the agreement and this was affirmed on appeal.

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310 (d), Self-Determination, Postponement or Cancellation provides that “If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination, provides that

A mediator shall:

(1) adjourn the mediation upon agreement of the parties;

(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;

(3) 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;

(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and

(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

[Emphasis added.]

While we’re to be non-judgmental as between the parties, aren’t mediators making “judgment calls” all the time? Take a look at how the mediator was permitted to testify and reconcile the testimony with the above rules.

To email me, click Perry S. Itkin.

The Need For Tweaking Can Be Fatal!

The case settled – no it didn’t; yes it did; no; yes; etc.

All mediators should read the New Jersey opinion Lehr v. Afflitto, 2006 N.J. Super. LEXIS 8 (N.J. App. 2006). It’s a long one, full of good lessons on a variety of topics [i.e. mediator’s opening statement, mediator responsibilities to the court, confidentiality and waiver, party remorse, clarity of communication, right to attorney review of agreements, plus more] and well worth reading!

The divorcing couple was ordered to mediation which occurred over two sessions and resulted in a memorandum of understanding [MOU] written by the mediator, who acknowledged “tweaking” was necessary on several issues. The plaintiff represented to the court that the matter was completely settled in mediation. Notwithstanding the fact that everyone agreed that the parties never created nor signed a property settlement agreement, the court used the mediator’s MOU as proof that the divorce was resolved and entered judgment. The defendant appealed.

The Appeals Court held that admission of the mediator’s MOU was error since the parties never waived their right for the mediation to remain confidential. The Appeals Court also held that there was no settlement because certain financial issues were left unresolved, showing a lacking of a final agreement. The mediator did not make a report to the court as required by the court order.

The appellate court viewed the trial judge’s taking testimony from the mediator with disappointment and said that “confidentiality of the mediation process is a matter of great public and systemic importance.” The court identified several bases for confidentiality in mediation: terms in the court order to mediate; the mediator’s oral statements to the parties; applicable court rules; and principles of the Uniform Mediation Act which the court stated was an “appropriate analytical framework” even though the UMA was not in force during the time in question.

So, after reading the opinion, how will you conduct your next mediation?

To email me, click Perry S. Itkin.

“If You Had Only Told Me!” – A Defense To Sanctions

In the Fifth District Court of Appeal case, Hernando County School Board v. Nazar, 2006 Fla. App. LEXIS 1995 [Fla. 5th DCA 2006], appellant filed a motion with the appellate court seeking the imposition of sanctions against appellee, Paul Nazar, and his counsel, Peter Capua, for their failure to appear at court-ordered appellate mediation.

The mediator, appellant’s counsel and party representatives all traveled to the site of the mediation. Nazar did not appear for the scheduled mediation. Attorney Capua did not appear in person for the mediation, although he attempted to appear by telephone. While no motion was filed with the court seeking to be excused from the personal appearance requirement, Capua contacted the mediator's office and sought to be excused from appearing personally at the mediation [not a good move]. The mediator did not excuse [this was a good move] the personal appearance of either Capua or Paul Nazar due to the court’s order which expressly stated that personal attendance can only be excused by the court.

To learn what reasons were given for not appearing and what the sanctions were, read the opinion. It’s a quick read.

To email me, click Perry S. Itkin.

I’m A Better Decision Maker When I’m Unconscious!

Okay, not really – but maybe! According to this article in Science magazine [subscription required] important decisions are better made when the thoughts about them are “put out of mind” and the choices are complex. The “deliberation without attention” theory has application in mediation. To learn a little more about the concept you might like to read about the study in this article from Yahoo.com News or this article [registration required and it’s free] in the New York Times.

So, the next time you hear a party say “I’d like to sleep on it overnight” [allowing unconscious thought to kick in], you just might suppose that has some value – or not [depending on . . . .].

Think about it [pun intended] – have you ever awakened with a great idea or a solution to a problem?!?

To email me, click Perry S. Itkin.

President Bush On Mediation – What Did He Say?!?

In an interview reported in Pakistan’s Daily Times, President Bush was asked about proposals for mediating between India and Pakistan:

“Q: Mr. President, in your speech, you talked about the Kashmir dispute and you said that you would like India and Pakistan to take bilateral steps to resolve the dispute. Pakistan has made certain proposals, but they are not reciprocated by India. And it seems that this bilateral process is not going anywhere. There’s need for a third-party mediation or some sort of help. Do you have any specific proposals for that?

Bush: First, I’d like to make sure I clarify my statement for all to read. America supports a solution that is acceptable to all sides — since you’re probably the only person in the room that paid attention to my speech. In the speech, as you know, I said “to both sides”. The language should be “all sides”, because it recognises [sic] that a solution must be acceptable to India, Pakistan and those living within Kashmir. Our position is one that says a dispute that has been so long in a nation’s history can best be resolved when two nations make the determination to sit down and come up with a solution that is acceptable to all sides. Of course, during my discussions, I will encourage that dialogue to go forward. I’m convinced that history changes, and as history changes, attitudes can change, circumstances change, and that we have a possibility to see this issue resolved by strong and courageous leaders. I’m pleased to see the amount of trade that’s taking place between India and Pakistan. It’s a substantial increase from July of ‘04 to July of ‘05. I thought that the — the new transportation routes between India and Pakistan are hopeful signs. And so the role of the United States, in our judgment, is one that will help lead to a settlement that is acceptable to all sides.”

What?!?

To email me, click Perry S. Itkin.

If It Looks, Walks And Quacks Like A Duck – It’s Not Mediation! It’s A Duck!

There is a myriad of alternative dispute resolution processes. You know them – negotiation, conciliation, facilitation, mediation [of course], early neutral evaluation, ombudsman, fact-finding, mini-trial, summary jury trial, arbitration, private judging, and litigation [again, of course]. There are combinations of these and other processes [we are very clever thinkers!]. There are also other ADR processes as well. All to say, the most visible are negotiation, mediation, arbitration and litigation. What happens sometimes [and sadly so] is that some of the other ADR processes are called mediation when, in fact, they are not as reflected in this opinion letter to 2TheAdvocate.com in Baton Rouge, Louisiana. Reading it, you can almost feel the writer’s frustration. You can, can’t you?

To email me, click Perry S. Itkin.

It’s Not What It Seems

According to the headline in Yahoo’s UK Entertainment News, actress Sharon Stone “lost” custody of her son as a result of an agreement reached in mediation. Not so fast! Take a look at the article. Was this a “good” agreement? “Good” for whom? What do you think about the agreement? Are more details needed before you come to a conclusion?

Remember, Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.320, Nonparticipating Persons, provides “A mediator shall promote awareness by the parties of the interests of persons affected by actual or potential agreements who are not represented at mediation.”

To email me, click Perry S. Itkin.

The Impartiality Hokey-Pokey!

According to the Second District Court of Appeal in Stevens v. Americana Healthcare Corp., 2006 Fla. App. LEXIS 1536 [Fla. 2nd DCA 2006], a writ of prohibition was issued against a trial judge, who first suggested he could not be impartial and then changed his mind when a party moved to disqualify him, and denied the motion to disqualify.

The judge voluntarily disclosed a personal or social relationship with some of the witnesses [a good move], invited the parties to make a motion for disqualification [another good move], suggested it would be granted [an even better move] but then denied the timely motion [a very bad move]. The appellate court did not believe that the trial judge’s voluntary disclosure of his friendship or acquaintance with some of the witnesses who might testify at trial in this matter was sufficient by itself to require the judge's disqualification. It was the judge’s remarks thereafter that lead to his disqualification.

What can mediators learn from this opinion?

Well, for starters how about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.340(a) and (c), Conflicts of Interest?

(a) Generally. A mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.

(c) Effect of Disclosure. After appropriate disclosure, the mediator may serve if all parties agree. However, if a conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the parties.

All to say, conflicts of interest and impartiality are closely connected [but you knew that, right?!?] and something we should always be attentive to.

To email me, click Perry S. Itkin.

“E.T.” Is Barred From Mediation!

Well, not exactly the real “E.T.” [the real E.T.?]– the concept is there however according to this article in The Birmingham News. A U.S. District Court Judge [not in Florida] ordered all parties [HealthSouth, investors and insurers] to stay at a mediation session until the mediator releases them. The Judge also ordered that the “designated client representative of each defendant shall have absolute authority to settle without the need to phone home for additional authority.”

Florida Rules of Civil Procedure, Rule 1.720(b), Mediation Procedures – Sanctions for Failure to Appear, requires, among others, the appearance of the party or its representative having full authority to settle without further consultation or 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.

So, the Judge’s order on the issue of authority to settle is consistent with the above rule. However, what do you think about that part of the order that requires the parties to stay in mediation until released by the mediator? Any ethical dilemmas here? How do you balance the mediator’s responsibilities to the court with the mediator’s responsibilities to the parties?

What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination?

A mediator shall:

(1) adjourn the mediation upon agreement of the parties;

(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;

(3) 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;

(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and

(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

After considering this rule, would you mediate under this order or would you decline the appointment?

To email me, click Perry S. Itkin.

Mediation Training Means Something!

According to this article on AllAfrica.com, the Centre for Effective Dispute Resolution [CEDR] reports that in Lagos, Nigeria, the problems Nigerians have in resolving conflicts, was as a result of the fact that well trained mediators have been denied the privilege of mediating in such conflict situations. Simply put, untrained mediators “mess things up”. I know, you’re shocked!

To email me, click Perry S. Itkin.

Gender and Negotiation – Is There A Nexus?

According to this article from the Harvard Business School’s Working Knowledge, gender is not a good predictor of negotiation performance, but ambiguous situations can trigger different behaviors by men and women. Suggestions are offered on how to neutralize the differences and reduce inequities. How would you implement these suggestions in your mediations?

To email me, click Perry S. Itkin.

“Florida Mediator” Posts Are Now Available By E-mail!

Never miss another post! If you like Florida Mediator then perhaps you’d like to sign up to receive it by email. Just scroll down this page and near the end of the right column, enter your email address and click on the “Subscribe me!” button. You’ll receive an email requesting that you confirm your subscription registration. It’s as easy as that!

To email me, click Perry S. Itkin.

Am I Qualified To Be A Mediator? Part II.

In an earlier post last year, I reported that the ADR Rules and Policy Committee of the Florida Supreme Court filed its Petition to amend the Florida Rules for Certified and Court-Appointed Mediators relating to revising the qualifications for mediator certification and other matters. Oral argument was held February 8, 2006. Judge Shawn Briese, Chair of the ADR Rules and Policy Committee, presented a masterful argument in support of the petition. A large part of the questioning focused on non-lawyers serving as mediators.

You can watch a video of the argument or you can read the transcript. It’s quite interesting!

Now, we wait.

To email me, click Perry S. Itkin.

Mediation Failed – What Do Parties Think About?

$51,000.00 was spent by the City of Clarksville, Tennessee, on mediation in racial discrimination lawsuits involving police officers and the police department. Mediation “failed” according to this editorial in The Leaf-Chronicle. What do you think the people of Clarksville are wondering about? If you were the mediator, is there any positive foreshadowing you would have done in this situation?

To email me, click Perry S. Itkin.

Florida Family Law Rules of Procedure Amended

The Florida Supreme Court, in In Re Amendments To Florida Family Law Rules Of Procedure Form 12.900(a), SC05-2154 [Fla. 2006], adopted Florida Family Law Rules of Procedure Form 12.900(a) effective immediately.

This form must be used when anyone who is not a lawyer in good standing with The Florida Bar helps a party complete any Florida Family Law Form. The nonlawyer must complete this form and both the party and the nonlawyer are required to sign it before the nonlawyer assists the party in completing any Family Law Form.

This is important information for Family Law Mediators who are not lawyers. It would be helpful to read the opinion and the form itself in conjunction with MEAC Opinions 2000-009 and 2001-003. In summary, these opinions advise that “assisting pro se litigants with filling out forms approved by the Supreme Court of Florida after a mediated settlement agreement is not a per se violation of the mediation rules; however, caution should be exercised to ensure compliance with mediation rules and other professions’ standards of conduct.”

To email me, click Perry S. Itkin.

A Written Mediation Agreement – Why Bother?

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420, Conduct of Mediation, (c) Closure, provides “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.”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Professional Advice Or Opinions, (b) Independent Legal Advice, provides “When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the party of the right to seek independent legal counsel.”

In the Fourth District Court of Appeal case of Matos v. Matos, 2006 Fla. App. LEXIS 1162 [Fla. 4th DCA 2006], the pro se parties went to a lawyer-mediator to work out a “settlement.” The husband moved to enforce the oral “marital settlement agreement.” The mediator testified that the parties came to her after they reached an informal agreement which she was to reduce to writing. Although nothing was in fact written down, the mediator thought that the parties came to an agreement. Moreover, she stated that she was not a constant participant in the negotiations.

There’s much more to the underlying facts in this case, which is worth reading, including domestic violence and financial disclosure issues. The appellate court reversed the final judgment and remanded the case for a new trial on the issue of division of the marital assets and alimony.

What, if anything, might have been different if the parties’ agreement was reduced to writing and the rules above complied with? Given the lawyer-mediator’s testimony, was this really a mediation? What do you think?

To email me, click Perry S. Itkin.

Here’s Florida Legislation You’ll Want To Follow!

The 2006 session of the Florida Legislature will convene March 7th. House Bill 7019 , a bill relating to mediation, was filed January 23, 2006 by the Civil Justice Committee.

In 2005, family court references in the statutes were changed to references to the unified family court model; however, mediation law was not correspondingly changed. This bill redefines mediation in Chapter 44, F.S., to provide for mediation in the unified family court. It reflects the changes created by the passage in 2005 of s. 25.375, F.S., which created the unified family court system and amends s. 44.1011, F.S., to create a definition for “unified family court mediation”. It also makes other technical and corrective changes to mediation law.

A sponsor in the Senate is expected.

To email me, click Perry S. Itkin.

Was Mediation Abused? You Decide.

According to this article in The Miami Herald, seven named plaintiffs in a class action lawsuit challenged the City of Miami’s fire fee and a $7 million settlement was reached in mediation. The 80,000 others supposedly in line to benefit from the class-action got nothing. Also, here’s the memorandum from the Office of the City Attorney about the lawsuit and recommending settlement. Read the article, visualize what may have occurred during mediation, and then decide – was mediation abused? Is this even the right question to ask? What about confidentiality? What do you think?

To email me, click Perry S. Itkin.

“I’m Going To Kill You! Let’s Mediate.”

Well, not exactly! According to this article from News 14 Carolina, a high school student who was accused of cheating by his teacher allegedly screamed at her, “I’m going to kill you!” She obtained a restraining order against him [there was more than just the screaming]. At a hearing to extend the restraining order, the teacher and the student agreed to go to mediation and they reached an agreement, some of the terms of which are in the article. How about that!

To email me, click Perry S. Itkin.

The Sky Is Not The Limit!

Mediation is powerful – it provides disputing parties with opportunities to craft outcomes tailored to their unique needs and circumstances in ways that neither judge nor jury can develop via decision or verdict. However, there are limits as demonstrated by the First District Court of Appeal in Wakeman v. Dixon, 2006 Fla. App. LEXIS 659 [Fla. 1st DCA 2006]. Although these were not mediation agreements, the several agreements entered into by this same sex couple providing for co-parenting for two children born to one of them as a result of sperm donation, were creative, tailored and unenforceable. Under Florida law, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and agreements providing for visitation by a non-parent are unenforceable.

The concurring opinion urged the legislature to address the needs of children born into or raised in non-traditional households when a break-up occurs.

I wonder, if someone can waive their right to an attorney during in-custody interrogation or otherwise waive their Fifth Amendment privilege against self-incrimination, can they waive their constitutional right to privacy in a mediation agreement? What do you think?

To email me, click Perry S. Itkin.

What Was On The Mind Of A Murderer?

In the latest of a series of posts about the murder trial of the husband who stabbed his wife to death after a mediation conference, this article from Inside Bay Area gives us an uncommon insight into what the mediant [I made that up] husband was thinking about as his expectation of family mediation. He testified in his defense. Now, I was not being judgmental [I’m still a mediator] when I titled this post. According to this article in The Mercury News the jury found him guilty of first-degree murder.

To email me, click Perry S. Itkin.

“The Check Is In The Mail!”

“Yeah, right!” Wait, what if it is really in the mail? The big question is what do you mean by “check”? According the Second District Court of Appeal in JLA Investment Corporation v. Colony Insurance Company, 2006 Fla. App. LEXIS 472 [Fla. 2nd DCA 2006] the parties, in this mediation agreement, settled their dispute by the appellee paying appellant $250,000.00 by bank or casher’s check by a date certain. All clear, right? Not so fast! Appellee timely delivered a check drawn on its corporate bank account. Appellant objected to the form of the payment, renounced the settlement and demanded $300,000.00 to settle its claim. Nice try [not really]. Appellant contended, as part of its defense to a Motion to Enforce a Settlement Agreement, that the agreement contemplated payment by an “immediately cashable” instrument. Not so said the appellate court. It’s a short, interesting opinion that’s worth reading to find out why not. Check it out [okay, I’m sorry for the pun]!

Seriously, what’s the agreement drafting lesson for us?

To email me, click Perry S. Itkin.

MEAC Opinion 2005-006 Now Online!

Here’s the summary of MEAC Opinion 2005-006 which addresses a conflict of interest inquiry:

A mediator (who is also an attorney) engaged in an ongoing legal relationship with a third party administrator must not serve as a mediator in cases involving the third party administrator because it is a clear, nonwaivable conflict of interest. A mediator (who is also an attorney) may serve in cases involving a reinsurer, even if some of the mediator’s legal clients utilize the same re-insurer, if the relationship is disclosed and the parties waive any potential conflict because such a relationship is not a clear conflict of interest.

To email me, click Perry S. Itkin.

“Ineffective Assistance Of Mediator”

Often criminal defendants raise the issue of ineffective assistance of counsel in their request for post-conviction relief as shown in the Third District Court of Appeal opinion, Carter v. State, 2006 Fla. App. LEXIS 389 [Fla. 3rd DCA 2006]. Mediators can avoid the claim of “ineffective assistance of mediator” [I made that up!] when parties attempt to set aside a mediation agreement by adhering to the lesson to be learned from reading this opinion. For example, think about the types of questions you might ask the disputing parties before they sign the agreement, i.e. have you read each and every word of the agreement, have you discussed it with your attorney, do you fully understood its provisions and what you have to do to comply with the agreement. A pretty good idea, don’t you think?!? What other types of questions might you think of to ask? Let me know, ok?!?

To email me, click Perry S. Itkin.

A Mediator Testifies

I’ve been following the news accounts of the murder trial of a husband who stabbed his wife to death after a mediation conference. The post this past Wednesday and the post earlier this month provide the foundation for today’s offering. According to this article in The San Mateo Daily Journal the family mediator testified that the Husband calmly left the mediation after he stood up and announced “I think we’re done here, thank you very much.” The mediator also said “It was well within the range of what I see” on a usual basis. All to say, expect the unexpected! There is nothing usual about the unexpected.

To email me, click Perry S. Itkin.

Don’t Read This If You Are Squeamish.

If this were a television program the warning might be something like “For Mature Audiences; Violence”. In an earlier post I wrote about a post-mediation homicide. The trial just began and according to this article from CBS 5: Bay City News Wire the prosecutor’s opening statements present a grim scenario which holds a plethora of lessons for mediators, especially in screening for domestic violence. Another article in The San Mateo Daily News provides additional information. In poker the saying goes “Read ‘em an’ weep!” The morphed saying for mediators could be “Read ‘em [the parties, not the cards] an’ weep! Think! Plan”!

This is serious. Please be careful!

To email me, click Perry S. Itkin.

New Continuing Mediator Education Seminars for 2006!

We have developed 2 new extraordinary Continuing Mediator Education programs for 2006. One is “CPR for Your Mediation Practice” and the other is “Skill Enhancements for Mediation Professionals”. Each seminar offers 8 CME hours, including 5 Ethics and The Florida Bar has approved each seminar for 8 CLER hours and 5 in Ethics. Visit the Mediation Training Center to learn more!

I couldn’t help taking a moment to do some marketing!

To email me, click Perry S. Itkin.

“I’m Not Sitting There!”

One of the basic concepts for mediators to learn is to be attentive to the physical mediation environment – i.e., setting up the room, seating arrangements, the size and shape of the table, whether a table is used at all, etc. Imagine the dispute to be over who sits where! Okay, don’t imagine – it’s real according to this article in CBC Nova Scotia. The local school board is looking at canceling future meetings until a mediator is brought in to help settle a dispute over the seating arrangement. The dispute is actually deeper than what appears on the surface [I know, what a surprise!] according to this article from CBC Nova Scotia which provides a little more background.

To email me, click Perry S. Itkin.

“Wait For The Cognac!”

Mediators strive to avoid cultural ignorance. Here’s an interesting article from In-House Counsel on-line providing some tips for working with individuals from other countries. Although it’s directed to lawyers, it’s a nice article for mediators too and a pleasant way to end the week!

To email me, click Perry S. Itkin.

Rules Are Made To Be Followed!

You knew that, right?!? From time to time, posts on Florida Mediator cite Florida Rules for Certified and Court-Appointed Mediators. Many of the Rules contain references to mediator conduct that is specifically prohibited [mandatory rules] – i.e., the “shall not” Rules. In Genuine Parts Company, et al. v. Parsons, 2006 Fla. App. LEXIS 134 [Fla. 4th DCA 2006] the Fourth District Court of Appeal, a case involving the Florida Rules of Civil Procedure and setting a matter for trial, said “We do not adhere to the plaintiff’s theory that the rules of civil procedure were meant to be broken.” Imagine that! Anyway, this is just a beginning of the year reminder for mediators that maybe now would be a good time to brush up on our rules of conduct.

To email me, click Perry S. Itkin.

Safety Is A Concern For Mediators

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination, provides that: A mediator shall:

(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

What about the aftermath – i.e., what happens after the mediation conference? When does the mediator’s ethical obligation end? According to this sad article in The Mercury News, a husband lay in wait for his wife in an elevator after storming out of the mediation session. He allegedly continued the attack even as police arrived. The wife had been denied a restraining order against her husband two weeks before her death.

Do you have any concerns about mediator liability here? Please be careful!

To email me, click Perry S. Itkin.

Mediation and Cultural Diversity – An Example

According to this article from The Hawaii Channel a federal judge proposed a way to end a standoff that has kept a Hawaiian leader in prison after refusing to tell where Hawaiian artifacts have been placed in Big Island burial caves. The judge suggested participation in a Hawaiian-style mediation process. What isn’t clear from the judge’s proposal was whether this was ho’oponopono or some other form of mediation. A cultural concern is what form of mediation the court was talking about.

To email me, click Perry S. Itkin.

Back To Basics – Grammar Is Important!

In Tiny Treasures Academy & Get Well Center, Inc. v. Stirling Place, Inc., 2005 Fla. App. LEXIS 20276 [Fla. 4th DCA 2005] the Fourth District Court of Appeal relied on the rule of ejusdem generis [the rule of whaat?!?] to interpret prepositions and nouns and decided that the prepositional phrase “to the premises” modified the noun “damages”, as in “damages to the premises” – this entire phrase is clear, right? Well, it was the issue on appeal. The opinion is a quick read, the “rule of whaat?!?” is explained and, yes, we’re back to basics. All to say the written word is still important [but you knew that, right?!?].

To email me, click Perry S. Itkin.

Virtual Visitation – A Tool for Family Mediators

This article in the Wisconsin State Journal highlights several on-line websites for divorced parents to assist them in communicating with each other and with their children. These helpful tools should be in the “toolboxes” of family mediators. Take a look at these valuable resources – good ideas for parents who cannot, or choose not to, communicate directly with each other as well as for those parents who are not “communication challenged”.

To email me, click Perry S. Itkin.

Hunting and Mediation?

According to this article in The Daytona Beach News-Journal shooting the bird had nothing to do with hunting. A complaint about obscene road rage gestures was resolved in mediation. Actually, it took more than one mediation session to reach an agreement. The parties were a teacher and a public safety director. Who do you think was the “hunter”? There’s more to the story.

To email me, click Perry S. Itkin.

Mediating Death-Row Cases

There’s a new television show called In Justice which premiered on New Year’s Day. The theme involves the National Justice Project, a high-profile, non-profit organization made up of young lawyers and investigators who fight to overturn wrongful convictions, liberate the falsely accused, and discover the identity of those really to blame. How about something similar – mediating death-row cases? According to this article [scroll down the list to “Hard Bargaining”] in the Arab News that’s exactly what the mediator does – he tries, through mediation, to save death-row inmates from, well, death. It’s very interesting reading!

To email me, click Perry S. Itkin.

Mediation Is A Riot!

Well, not exactly. According to this article in Outlook India, lawyers from the Delhi Bar Association vigorously [to put it mildly] protested the opening of a mediation center [referred to as a “Mediation Cell”] at a court complex in New Delhi. The Bar claims the cell, started with the help of American trainers from the U.S.-based Ford Foundation for out-of-court case settlements in October was a glaring example of “back-door” entry of foreign legal machinery in India. Hmmmm!!

To email me, click Perry S. Itkin.

Mediators Are “Violence Interrupters”

According to this article from the BBC News [International Version], a Chicago organization named “CeaseFire” has been created to mediate gang conflicts. The mediators are former gang members who are referred to as “Violence Interrupters” – an interesting moniker.

All to say, my best wishes to you and your families for a Happy, Healthy, Prosperous and, especially, Safe New Year! Thank you for making Florida Mediator a part of your reading this year. “See” you next year – keep smiling!

To email me, click Perry S. Itkin.

New Multijurisdictional [MJP] Practice Rules Impact Mediation

According to this article in The Florida Bar News, three new rules that deal with multijuristictional law practice in Florida become effective January 1, 2006. The article presents some common questions with answers including one that focuses on mediation. We should know about this. Take a look [it’s the third question from the end of the article].

To email me, click Perry S. Itkin.

“Marathon Mediation” – Potential For Coercion

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(b) Self-Determination, Coercion Prohibited provides “A mediator shall not coerce or improperly influence any party to make a decision or unwillingly participate in a mediation.”

Rule 10.420(b)(2) Conduct of Mediation, Adjournment or Termination provides “A mediator shall adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties. . . .”

Generally, a mediator should not conduct a mediation conference which in any way would appear to coerce any party [but, you knew that!] – this would include the duration of the mediation and whether or not party [or their counsel or another mediation participant] expresses concern about the length of the conference. For instance, would a prolonged mediation conference have the unintended consequence of depriving a party of effective or meaningful representation of counsel?

Take a look at Shultheis v. Gotlin, 2005 Fla. App. LEXIS 20148 [Fla. 5th DCA 2005] for an analogous situation where an appellate issue [it starts on page 6, middle paragraph, of the opinion] involved a jury required to work a “marathon 16-hour workday” and the totality of the circumstances test. What mediation lessons can we learn from this opinion?

To email me, click Perry S. Itkin.

What Does Pastrami Have To Do With Mediation?

Marathon mediations – you may have participated in one or more, right?!? So, is your approach starve them until they settle – of course not! In providing the venue and environment for mediation you will attend to the dining [okay, maybe not high end cuisine] needs of the mediation participants. How about a 29 hour mediation? What would you serve or order in? According to this article in the New York Post, the recent transit strike in New York was settled over pastrami sandwiches! Pickles or chips anyone? The article presents some interesting insights into the negotiation techniques used by the mediators.

To email me, click Perry S. Itkin.

More Holiday Fun!

The week between Christmas Day and New Year’s Day is usually kind of quiet. So, in order not to lose any mental acuity, put on your thinking cap and enter [for free] the “Fun ADR Contest” at Dina Beach Lynch’s Mediation Mensch blog. The deadline is December 31st. Good Luck!

Thank you, too, to Dina for her very nice compliments about Florida Mediator!

To email me, click Perry S. Itkin.

Family Mediation – A New Meaning!

According to this article in the New York Daily News, the new acting boss of the Gambino crime family, John “Jackie Nose” D’Amico, is a mediator. How about that?!? Diplomacy skills are more valuable than muscle – new roles for new times.

To email me, click Perry S. Itkin.

A Holiday Present For You - If You Can’t Type [Or If You Can]!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420 Conduct of Mediation provides:

(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.

Even though the Committee Notes enlighten us that mediators are “. . . not required to write the agreement themselves”, a mediator may act as a scribe and type the agreement as it is dictated to them by counsel or they will type the terms of the agreement as they develop point by point during the mediation. Can you do two things at the same time, i.e. listen and type [without looking at the keyboard]? Have you attempted this and found Jabberwocky on the screen?

Well, for fun, you might want to print the following paragraph and ask someone to read it out loud to you.

“Aoccdrnig to rscheearch at Cmabrigde Uinervtisy, it deosn't mttaer in waht oredr the ltteers in a wrod are, the olny iprmoatnt tihng is taht the frist and lsat ltteer be at the rghit pclae. The rset can be a toatl mses and you can sitll raed it wouthit a porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe.”

Even though the letters are jumbled in the paragraph, most people have no trouble reading it! Credits to Robert K. Goral for the paragraph.

Now, wasn’t that fun? Okay, how about interesting? Aren’t we just simply amazing?!?

Enjoy the Holidays and your families; stay safe!

To email me, click Perry S. Itkin.

Florida Hurricane Mediation Program Is A Model

As noted in this prior posting, Florida has developed a mediation protocol to address hurricane damage disputes that arise between insureds and their insurance carriers. It works! According to this article in the Insurance Journal, Mississippi’s Insurance Commissioner has unveiled a Hurricane Katrina mediation program patterned after Florida’s program. More details about the program, which is administered by the American Arbitration Association, are reported in this article in The Sun Herald. In addition to mail, telephone or fax registration, Internet registration for this program is expected to be available. How about that!?!

To email me, click Perry S. Itkin.

Court Is Not Always The Best Way – Mediation Is Better!

According to this article from ABC Action News, a Circuit Court Judge said the judicial system is not always the best way to resolve complex disputes and that mediation is the only way to find a middle ground between a university professor and Florida State University in a dispute over the focus of a new chemistry building. What’s this all about?

To email me, click Perry S. Itkin.

What’s Up With Parenting Coordination?

The Florida Chapter of the Association of Family & Conciliation Courts Task Force on Parenting Coordination has issued its final report on the development of parenting coordination legislation. It recommended that the parenting coordination legislation not be submitted for consideration to the Florida Legislature for action during this 2006 session since there still remains vast differences in approaches to the use of parenting coordinators, which differences are not resolvable at this time and that it was highly unlikely that the legislative process would result in a statute that would have wide support among the stakeholders interested in its outcome.

Click here for more information on the Task Force background.

To email me, click Perry S. Itkin.

Mark Your Calendar!

In an earlier post I reported that the Florida Supreme Court ADR Rules and Policy Committee had filed its Petition to amend Florida’s Rules for Certified and Court-Appointed Mediators requesting revisions to the qualifications for mediator certification and other matters. The Petition was filed May 11, 2005. Just yesterday, Oral Argument on the Petition was scheduled for Wednesday, February 8, 2006. All to say, mark your calendars! If you’d like to watch the proceedings on-line, you can do so by clicking here [not before February 8, 2006 – but you knew that, right?!?].

Enjoy the weekend!

To email me, click Perry S. Itkin.

Florida Supreme Court Adopts Amendments to Small Claims Rules Referencing Mediation!

The Florida Supreme Court adopted Amendments to the Florida Small Claims Rules in its opinion SC05-146, released today with an effective date of January 1, 2006.

The Court adopted new Form 7.321, Notice to Appear for Pretrial Conference/Mediation, as proposed by the ADR Rules and Policy Committee, and agreed to by the Small Claims Rules Committee. This Form provides “[t]he case will not be tried at the Pretrial Conference, but may be mediated at that time. Do not bring witnesses. You must appear in person or by attorney. Whoever appears for a party must have full authority to settle for all amounts from zero to the amount of the claim without further consultation. Failure to comply may result in the imposition of sanctions, including costs, attorney fees, entry of judgment, or dismissal.” The Notice to Appear also contains an explanation of mediation and confidentiality of mediation communications.

The Court also adopted Form 7.350, Corporate Authorization To Allow Employee To Represent Corporation At Any Stage Of Lawsuit, and this includes mediation.

To email me, click Perry S. Itkin.

Have You Ever Been Threatened During Mediation?

F. S. 838.021, Corruption by Threat Against Public Servant, makes it a felony to harm or to threaten harm with the intent or purpose to influence a public servant to do, or not do, an act within the discretion of the public servant, or in violation, or performance, of a public duty. While providing mediation services in a court-ordered mediation are you considered to be a “public servant”? Unless you are covered under the specific provisions of F.S. 838.014(6), Definitions, you won’t like the answer provided in F.S. 838.014(6)(c), Definitions.

So, do you think the statute should be changed?

To email me, click Perry S. Itkin.

MEAC Opinions 2005-002 and 2005-003 – Now Online!

MEAC Opinion 2005-002: A position as a judicial assistant does not automatically prohibit you from mediating, but you are still obligated not to mediate a matter that “presents a clear or undisclosed conflict of interest,” Rule 10.340(a). You are required to make this determination on a case by case basis.

MEAC Opinion 2005-003: The Mediator Ethics Advisory Committee lacks the jurisdiction to determine whether a mediation should be treated as a negotiation for purposes of sections 447.605(2) and 286.011(3), Florida Statutes. However, if a mediation falls within the scope of the Mediation and Confidentiality and Privilege Act, then all mediation participants are obligated to adhere to its provisions.

To email me, click Perry S. Itkin.

“I’m A Certified Mediator. Am I Ethically Obligated to Report Another Certified Mediator’s Ethical Violations?”

According to the Mediator Ethics Advisory Committee’s most recently published opinion, the answer is “[t]here is no ethical obligation under the Florida Rules for Certified and Court-Appointed Mediators for a mediator to report allegations of ethical violations by another mediator.” You will want to read MEAC Opinion 2005-004. It also opines that “[i]t is inappropriate for a mediator to represent either one party or both parties in any dissolution proceeding or in any matter arising out of the subject mediation.”

To email me, click Perry S. Itkin.

Cross-cultural Misunderstandings & Negotiation

Carefully preparing for mediation is always important and is especially significant when one or more of the parties is from a culture other than your domestic culture. This article, International Negotiation: How Do I Get Ready?, by Lothar Katz, founder of Leadership Crossroads, will help you prepare for an international negotiation. It’s worthwhile reading!

To email me, click Perry S. Itkin.

“If You Don’t Sign This Post-Nuptial Agreement, I’ll Divorce You!”

Or, to put it another way, “if you really love me, you’ll sign!”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420[b][4] Conduct of Mediation, Adjournment or Termination, provides, in part, that a mediator shall “terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability. . . .”

In Zoldan v. Zohlman, 2005 Fla. App. LEXIS 18798 [Fla. 3rd DCA 2005], the Third District Court of Appeal reversed a final judgment declaring a post-nuptial agreement to be invalid because of undue influence. The court held that “mere affection and attachment or a desire to gratify the wishes of one who is esteemed or trusted may not alone be sufficient to amount to undue influence.”

Although this did not involve a mediation conference, the principle is illustrative of what a mediator should think about when considering termination under the above rule.

To email me, click Perry S. Itkin.

The Valueless Apology!

You may have heard it before – “I’m sorry.” In the context of the facts in In re Debra L. Koven, On Contempt, 2005 Cal. App. LEXIS 1818 [Cal. 2nd App. Dist., Div. 6 2005] the lawyer apologized “for the improper statements in the petitions, [and] expresses deep regret for impugning the [integrity of this] Court, and accepts the embarrassment she has brought upon herself. . . .” This did not prevent her from being held in contempt by the appellate court.

The lawyer’s approach to litigation focused on impugning the integrity of everyone in the legal system, whether judges, justices, attorneys, or expert witnesses, who obstructed the achievement of her goals. I wonder what this lawyer would have to say about mediators!

How did the court determine whether the apology was genuine? Well, you’ll have to read the interesting analysis. All to say, sometimes “I’m sorry” just doesn’t have value.

To email me, click Perry S. Itkin.

P.S. By the way, for most of last week I was presenting my 40 hour Family Mediation Certification Training program and was unable to post to Florida Mediator.