The Top 10 Reasons Not To Mediate

This is not the Late Show David Letterman’s Top 10 – these belong to Philip S. Cottone of the Property Trust Advisory Company and, while the focus is on mediation in the securities industry, it has application across the board [not the Big Board i.e. stock exchange, the mediation board – sorry, I couldn’t resist]. Here are the top 10 and you can download them [and some very interesting commentary] by clicking on this link from the Practicing Law Institute which is an excerpt from PLI’s Course Handbook Securities Arbitration 2005: Telling Your Story #6855.

The Top 10:

1. Saying I want to mediate will show weakness to the other side and telegraph I think I have a weak case.

2. I have a slam dunk case and there is no point in mediating.

3. I don’t want to show my case to the other side before trial.

4. The case is too complex.

5. The parties (or the lawyers) are too emotionally involved to sit down together.

6. It will be a waste of time.

7. The case will not settle because the other side is unreasonable and will not listen until we get to the courthouse steps.

8. My client doesn’t want to mediate.

9. I have to spend the time preparing for trial, and at trial I have the best chance of getting a good award for my client.

10. I can do it better myself.

So, you’ve never heard these before – right?!? Naahh!

To email me, click Perry S. Itkin.

Challenges Of “The Profession”

“The Profession” referred to by former Florida Supreme Court Justice Major Harding is the legal profession. In his keynote address at the General Assembly at the Florida Bar’s Annual Convention in Boca Raton last month he identified several challenges and what lawyer’s could do to meet them. His important commentary has equal applicability to the mediation profession as well! As you read this article in the Florida Bar News, think about the points he makes in the context of mediation.

Along similar lines, is this thank you editorial in The Daily Commercial from Judge Donna Miller to Lake County’s County Court volunteer mediators who clearly are mindful of Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.690(a), Advancement of Mediation, Pro Bono Service which provides:

Mediators have a responsibility to provide competent services to persons seeking their assistance, including those unable to pay for services. A mediator should provide mediation services pro bono or at a reduced rate of compensation whenever appropriate.

How about you?!?

To email me, click Perry S. Itkin.

Who’s Sorry Now?

Can you hear the music? Okay, maybe this will help – the song Who’s Sorry Now? was written in 1923 long before it became a hit for Connie Francis and, believe it or not, was sung by the Marx Brothers in their movie A Night In Casablanca! What the song had to do with the movie is anyone’s guess and what all of this has to do with mediation, well . . . .

I know – you’ve already figured it out – the power of an apology! Excellent! The concept of “full disclosure/early offer” as a policy for settling medical malpractice cases has proven effective according to this article in The National Law Journal. The key to the policy lies in the open exchange of information, particularly between experienced counsel, that enables the early settlement of meritorious claims.

To email me, click Perry S. Itkin.

My Mouth Is Moving But My Body Is Doing Most Of The Talking!

Studies have shown that the first impression is based 7 percent on what you say, 38 percent on the tone of your voice, and 55 percent on your body language according to this article by Judith Early in Lawcrossing. Although the article focuses on job interviews, it provides a good explanation of how some basic body language can be interpreted and excellent tips mediators can use to project confidence. Take a look!

Have a nice weekend!

To email me, click Perry S. Itkin.

It’s Not Clear And I’m Not A Party – Why Am I In Contempt?

In Tsokos, et al. v. Sunset Cove Investments, Inc., 2006 Fla. App. LEXIS 11806 [Fla. 2nd DCA 2006] appellants petitioned the Second District Court of Appeal for a writ of prohibition quashing an order to show cause why they should not be held in indirect criminal contempt for their willful disobedience of, and interference with, the final judgment in a lawsuit to which they were not parties. The final judgment incorporated all the provisions of a mediated settlement agreement and the trial court retained jurisdiction to enforce them. Because the final judgment did not proscribe the conduct forming the basis of the order to show cause, the appellate court granted the petition and ordered that no further proceedings be held on the order to show cause.

The final judgment did not expressly prohibit [and apparently neither did the mediated settlement agreement – what’s the lesson here?] a third party [the appellant in this case] from purchasing the real property which was the subject of the litigation after the closing date incorporated into the final judgment.

To email me, click Perry S. Itkin.

Unconscious Mediation!

Well, not really but it could have helped where a man in eastern India uttered the Urdu word for divorce [“Talaq”] three times in his sleep thereby accidentally divorcing his wife according to the religious leaders in West Bengal state as reported in this Associated Press article.

Does this give “no fault divorce” new meaning? Not so fast!

In an earlier post I noted that the High Court in Kerala has said that under Muslim law, mediation should be undertaken before using the Talaq option in divorce. Hmmm! What if the man first had a dream about family mediation with his wife and then, in the same dream, gave “Talaq?” Would the “divorce” then be valid? What do you think [or am I just ‘dreaming’ – sorry, I couldn’t resist]?

To email me, click Perry S. Itkin.

MEAC Opinion 2006-002 – Now Online!

Here’s a summary of MEAC Opinion 2006-002 which provides a succinct analysis of the importance of party self-determination and drafting the agreement:

Mediation of a small claims case resulted in impasse. Thereafter, the County Court judge instructed the parties on trial procedures and how s/he was likely to rule in an effort to urge them to settle. The judge then “suggests” that the parties return to a “second” mediation. The mediator in the “second” mediation must carefully monitor the parties’ participation in the mediation to ascertain their ability to exercise self-determination and must be prepared to terminate the mediation if any party is unable or unwilling to participate meaningfully in the process. In the context of small claims mediation, where the parties may not be familiar with the traditional court process and may be intimidated by the proceedings, a mediator is not relieved of ethical responsibilities by writing the “agreement” up as a “scrivener”.

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

The Committee Notes to that Rule provide, in part:

Florida Rule of Civil Procedure 1.730(b), Florida Rule of Juvenile Procedure 8.290(o), and Florida Family Law Rule of Procedure 12.740(f) require that any mediated agreement be reduced to writing. Mediators have an obligation to ensure these rules are complied with, but are not required to write the agreement themselves.

So, since context is important, do you think MEAC would reach a similar conclusion if the parties were represented by counsel in any type of mediation, whether it’s small claims, civil county court, circuit civil, family or dependency? What if one [or both] party is pro se? What if . . . ? Keep thinking about this!

To email me, click Perry S. Itkin.

Albert Einstein – Mediator!

Well, not really; although he could have been. You see, Albert Einstein had a formula for success in life which demonstrates the importance of effective listening in communication. The formula is a=x+y+z.

a=success
x=work
y=play

When asked what “z” was, Einstein mischievously remarked “That, my dear sir, is ‘keeping your mouth shut.’” All to say, knowing when to be quiet is as important in knowing what your mind should be doing when your mouth is “shut” – listening critically.

Since most of effective communication involves listening, determine your listening quotient by taking this test to learn if you need to become a better listener.

If you find you need some “listening help”, take a look at these top ten tips for becoming a better listener from Coachville or these Strategic Listening tips from Witt Communications.

To email me, click Perry S. Itkin.

Back To Basics!

The First District Court of Appeal reminds us, in Hale v. Shear Express, Inc., 2006 Fla. App. LEXIS 10056 [Fla. 1st DCA 2006], that to be enforceable, a settlement agreement must reflect assent by the parties to all essential terms; if any remain open, subject to future negotiation, there can be no enforceable contract. But, you knew that – right?!?

You’ve heard it before – “We’ll prepare and exchange releases later.” Uh oh! Now what?

This isn’t the first time the First District Court of Appeal called this to our attention – see my earlier post on the issue.

To email me, click Perry S. Itkin.

It’s Still Just A Duck – Not Mediation!

In an earlier post I noted that some ADR processes are called mediation when, in fact and practice, they are not mediation at all! So, what on earth is “binding mediation?”

In the California case of Lindsay v. Lewandowski, 2006 Cal. App. LEXIS 821 [Cal.App. 4th 2006] the court explored the differences between mediation and arbitration and “binding mediation”. In the case on appeal, the parties reached a mediated settlement on all but two terms. The payment terms were left up in the air and the parties also agreed “in the event of a dispute as to the terms of the settlement the parties agree to return to the mediator for final resolution by . . . .” Here is where the communication broke down. One version said binding arbitration, but had a line through it, and was replaced by the word “mediation.”

Here’s how the mediator described the procedure he intended to use to resolve the parties’ disagreement [this was not a good mediator move] over the payment terms of the settlement he had mediated: “[T]he parties have agreed in advance that in the event the parties fail to agree, I then decide these terms and conditions, typically by asking the parties to each submit to me their final offers, accompanied by their oral argument as to why I should select their version over all others. I then select as the final binding provision the term or terms of either one party or the other.” [Sounds like arbitration to me – baseball arbitration, actually!]

There are significant problems with the concept of “binding mediation.” Among them are:

What rules apply – the arbitration rules, the court-ordered mediation rules, the mediation confidentiality rules, or some mix?

If only some rules, how is one to chose?

Should the trial court take evidence on the parties’ intent or understanding in each case?

Three justices on the Court of Appeal were flabbergasted, and one of the concurring justices called the term “binding mediation” oxymoronic [I agree!].

All to say, call the process what it really is – arbitration; it is not mediation, just a duck! [You know if it looks, walks and quacks like a duck - it’s a duck!]

Please read and re-read this excellent opinion. How would you, as the mediator, have handled the parties’ disagreement?

To email me, click Perry S. Itkin.

Places Of Worship, Public Policy And Mediation

Along the east coast of the United States the locations of places of worship are being mediated - one in Boston, Massachusetts [according to this article in The Boston Globe] and one in Hollywood, Florida [according to this article in The Miami Herald]. In these two instances all participants agree that direct communication between the parties works best and that court was not the place to resolve the disputes. "Fish bowl" mediation has its benefits! The common theme is that once the foundation of understanding is established, options can be created and resolution achieved [buttressed by some stern encouragement, i.e. a trial commencement deadline, from a judge]. Imagine that!

To email me, click Perry S. Itkin.

They Said What?!?

The Florida Supreme Court in In re: Petition To Adopt Florida Rules For Certification And Regulation Of Court Interpreters and Florida Rule Of Judicial Administration 2.073, 2006 Fla. LEXIS 1394 [Fla. 2006] adopted Florida Rules for Certification and Regulation of Court Interpreters and a new Florida Rule of Judicial Administration, Rule 2.073, Appointment of Interpreters for Non-English-Speaking Persons, in response to the recent enactment of chapter 2006-253, Laws of Florida.

So, what does this have to do with mediation? Nothing, exactly and yet . . . .

One of the fundamental learning objectives in mediation training programs is to “[i]dentify techniques for mediating cases where there is a language barrier or when a translator participates in the mediation session.” I interpret [pun intended – sorry!] the word “translator” here to mean interpreter. These new rules give mediators valuable insight into what professional conduct is expected of a certified court interpreter and, hence, what we can expect of them if they participate in mediation.

Additionally, Part IV, Discipline, in these new rules delineates the conditions under which disciplinary action may be taken against a certified court interpreter. The discipline may take the form of suspension or revocation of certification. Rules 14.410-14.460 set forth a detailed disciplinary process based loosely on those applicable to mediators. See Florida Rules for Certified and Court-Appointed Mediators 10.810-10.880. Hmmm, how about that?!?

Since we have the benefit of such a wonderfully diverse cultural population here, I thought this would be an appropriate post for the 4th of July! Enjoy the holiday and stay safe!

To email me, click Perry S. Itkin.

Mediating Over Troubled Waters

My apologies to Simon and Garfunkel and their “Bridge Over Troubled Water,” the last album they did together. Did you know that Florida actually has a statute, F.S. 373.71, known and cited as the “Apalachicola-Chattahoochee-Flint River Basin Compact”, or “ACF Compact” or “Compact” for short? This Compact among the states of Alabama, Florida and Georgia and the United States of America has been entered into for the purposes of promoting interstate comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACF, engaging in water planning, and developing and sharing common data bases. Seems esoteric, doesn’t it?

Not so fast! According to this article in the Atlanta Journal-Constitution, the Governor of Georgia has asked the Governors of Florida and Alabama for a personal meeting [sounds like mediation to me] to resolve a 16 year tri-state water war. Georgia’s Governor believes there is too much at stake to let the courts decide! How about that?!?

To email me, click Perry S. Itkin.

Ask “What If?” To Avoid Latent Ambiguity

This is an important question for mediators to ask as is demonstrated by the Fourth District Court of Appeal in Kirsch v. Kirsch, Case No. 4D05-4170 [Fla. 4th DCA 2006]. This case addresses trial court treatment of an ambiguous provision in a mediation agreement.

The agreement expressly provided that the parties would “stipulate to the recommendations of Canoy Roberson,” the children’s therapist regarding reunification of the father with the children and that the mother would retain sole parental responsibility until such time as the named therapist recommended shared parental responsibility. This therapist was the only therapist referenced by name in the agreement; however, the agreement did provide that the mother could take the children to an “additional therapist to address concerns other than those being addressed by” Roberson and that the father would be responsible for half of the uninsured costs of therapy “between the children and [Roberson] or any mutually acceptable therapist.” After the mediation agreement was ratified by the court, the named therapist resigned. The trial court determined that the detailed language of the agreement was unambiguous and the appellate court disagreed finding that the mediation agreement contained a latent ambiguity because it does not address the eventuality of the named therapist’s unavailability.

The lesson here is, “What if . . . ?” Say, how about the parties building in a dispute resolution procedure [i.e. return to mediation before litigation, although not to a specifically named mediator] not only about performance or non-performance under a mediation agreement but also about interpretation of its terms? Just a thought!

To email me, click Perry S. Itkin.

What It Takes To Be A Good Mentor!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.690(b), Advancement of Mediation, New Mediator Training, provides that “[a]n experienced mediator should cooperate in training new mediators, including serving as a mentor.” Assuming we all have served as a mediation mentor at one time or another [or does this only happen on my planet?!?], did you ever wonder what it takes to be a good mentor?

Here’s a succinct article from the Ewing Marion Kauffman Foundation to help each one of us demonstrate nobility of character by revealing the best of ourselves – the essence of being a good mentor.

To email me, click Perry S. Itkin.

Florida’s 15th Annual Conference For Mediators And Arbitrators

All y’all [the plural of y’all] are invited to register for this excellent conference which has something for ADR professionals everywhere! The schedule is:

Thursday, August 24, 2006
Supreme Court Arbitration Training (10 am - 5 pm)
Early Conference Registration & Welcome Reception (5 pm - 7 pm)

Friday, August 25, 2006
Annual DRC Conference (8:30 am - 5 pm)

Saturday, August 26, 2006
Conference continued (8 am - 11:45 am)

Here are the conference brochure and the registration form.

I hope to see you in August at the Dispute Resolution Center conference in Orlando!

To email me, click Perry S. Itkin.

New Parental Relocation With A Child Statute Impacts Family Mediation!

Yesterday, Florida’s Governor approved Senate Bill 2184 relating to parental relocation with a child. It becomes Chapter 2006-245, Florida Statutes and has an effective date of October 1, 2006. The law creates F.S. 61.13001 within Florida’s Dissolution of Marriage statute. Among other things, it provides factors to be used to determine contested relocation, provides for notification of certain persons of intent to relocate a child and provides procedures therefor. Additionally, it requires that certain information be provided on a Notice of Intent to Relocate.

F.S. 61.13001(1) provides definitions [a cornucopia of thought provoking information] while F.S. 61.13001(2) establishes the criteria parents, who sign a written agreement to relocate a child’s principal residence, must satisfy in order to meet the requirements of the new law. As you read the statute, pay particular attention to the terminology.

To email me, click Perry S. Itkin.

Mediation Is Not A Bulletproof Vest!

According to this article in the Reno Gazette-Journal, [and these additional stories] judges in the Washoe County Courthouse are requesting tighter security after the sniper shooting of one of the family court judges at the Courthouse. One of the judges talked about ways violence can be deterred before the dispute reaches the courtroom through mediation and settlement sessions. Just how will mediation accomplish this? Private mediators don’t have metal detectors or body scanning wands. As a mediator, would you try talking someone out of shooting or stabbing you, or would you rather sit near the conference room door?!? [I’m serious here.]

Remember this post about the husband who stabbed his wife to death following a private mediation session.

Yes, Florida’s Rules for Certified and Court-Appointed Mediators addresses safety.

For example, Rule 10.420(b) (5), Conduct of Mediation, Adjournment or Termination provides that “A mediator shall terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.” [Emphasis added.] There’s no wiggle room here – stop talking.

All to say, please be careful out there – mediation is not a bulletproof vest!

To email me, click Perry S. Itkin.

Who Can Be Present During Mediation?

Among the mediation training learning objectives is to identify individuals who are entitled to participate in the mediation conference as well as those non-parties who may need to be present, including legal parties as well as “parties in interest”, i.e. best friends, family members, lien holders, guardians ad litem, and pets. Okay, not really pets! Service animals yes [remember the the Americans With Disabilities Act of 1990]. But pets – nahhh! Okay, maybe – depending on the circumstances. In any event, since pets are not permitted in the courtroom according to this article from the Associated Press reported at Law.com, do you think they should be allowed to “participate” in the mediation conference? [I actually had that happen once!]

To email me, click Perry S. Itkin.

“What Do You Mean Standing To Mediate?”

Put differently, mediation is a challenge. [You knew that, right?!?] Having said that, the mediation challenge has a different meaning than the one you’re thinking about in the context of mobile homeowners’ disputes.

Initiation of mediation and initiation of litigation are both “challenges” under F.S. 723.037(1). In order for a mobile homeowner’s association to have standing to mediate and standing to sue [i.e. both are ‘challenges’], it must have the written agreement from a majority of affected homeowners according to Sun Valley Homeowners, Inc. v. American Land Lease, Inc., 927 So.2d 259 [Fla. 2nd DCA 2006] from the Second District Court of Appeal.

To email me, click Perry S. Itkin.

Does Mediation Have A Dark Side?

Not everyone is enamored with mediation as this article from the Traverse City Record-Eagle points out. So, what do you think of the opinion of this business editor on mediation in zoning related litigation?

But [and it may be an effective “but”, if you know what I mean], there is someone who believes mediation should be as accessible as fast food according to this article in the Sun-Sentinel!

Now what do you think of the opinion in the first article?

To email me, click Perry S. Itkin.

Do Judges Read “Florida Mediator”?

In a post on April 27, 2006 I addressed the technique of if all else fails try rock-paper-scissors. Well, a U.S. District Court Judge in the Middle District of Florida yesterday has entered just such an order. Imagine that! You can read a little more about the event in this article from CNN.

To email me, click Perry S. Itkin.

Minimizing Mediation Risks In Domestic Violence Cases

According to this article in the Poughkeepsie Journal, the collaborative efforts of the mediation and domestic violence communites in Dutchess County, New York established a protocol which departs from the traditional manner in which mediation is practiced. Rather than eliminating mediation as an option [which has the net effect of one more system telling the victim what they can and cannot do - i.e. dictating to them], special policies and procedures have been developed to empower the victim. This appears to be a viable program - keep up the good work!

To email me, click Perry S. Itkin.

“But I Have A Good Case; Why Should I Settle?”

It's not always the notion that a party has a “good case” or even a “great case” - is it? Even with a “great case” parties settle for non-litigation outcome reasons [is this another way of saying “risk”?] as is demonstrated in this article from the ContraCosta Times involving a nuclear scientist once identified in the news media as the target of a government spying investigation. The defendants were the U.S. government and five media organizations all of whom contributed to the settlement. Take a look at the motivations behind the media’s “exceptionally” unusual $750,000.00 payment and the government’s payment of $895,000.00. The multi-party media defendants contributed disproportionately to their total payment [frequently a common multi-party defendant scenario] and the scientist will not personally receive any of the government’s payment. How come?

Well, you'll need to read this interesting article to gather the lateral thinking behind the settlement!

To email me, click Perry S. Itkin.

“Florida Mediator” Named In Top Five Blog List!

What a nice tribute! The National Institute for Advanced Conflict Resolution has named Florida Mediator among the top five mediation blogs in its Annual Mediation Blog Roundup.

“The advent of blogging as a form of internet communication has begun to revolutionize how information is disseminated on the web. The mediation field has not been immune from this development, and there are a growing number of blogs relating to the mediation field popping up on the internet. In recognition of the efforts of these blog pioneers, we have surveyed the field and our findings are presented below.”

5. Florida Mediator (Written by Perry S. Itkin, Fort Lauderdale, Florida) Although somewhat regional in its scope, our top five list would not have been complete without including this veteran blog. Florida Mediator always contains items of interest to mediators, even those who are not from Florida. Because of its longevity, this blog also has an extensive archive collection. In short, this blog is a good read for a mediator in any geographic area, but a must read for any Florida mediator.

It's an honor to be in such distinguished company!

To email me, click Perry S. Itkin.

Mediators Are High Impact Leaders!

Mediators demonstrate behaviors and employ skills that parallel those of leaders of high performing teams. You’ll see that clearly after reading this article from Linkage, Inc.

Have a nice [and safe] Memorial Day weekend!

To email me, click Perry S. Itkin.

“What? What Did You Say? What Did You Mean?”

Hear [I mean here] is an easy to read primer on Active Listening from Mind Tools to help you become a better listener. Among the important components of listening, it identifies the different listening modes, different levels of communication and techniques to improve your listening skills.

Reminders are good from time to time, don’t you think?

To email me, click Perry S. Itkin.

It’s Not Always About The Law!

The law emphasizes rationality, logic and analysis – well, generally speaking. There are, however, positive aspects of the law which incorporate a win-win philosophy, interdisciplinary cooperation and/or a recognition of two needs common to all human beings — to be respected and to be treated fairly [does any of this sound familiar?].

These latter aspects are the focus of this article from The Olympian Online which emphasizes the positive dimensions of the legal system [and you thought there were none – just kidding!].

To email me, click Perry S. Itkin.

Ooops! I Made A Mistake – I’m Not A Perfect Negotiator.

Here’s a very useful article from The Negotiator Magazine on 25 of the most serious errors made by negotiators and some suggestions on how to fix them! It’s a good read for mediators; it helps us spot these errors.

Pay special attention to Error Number 9!

To email me, click Perry S. Itkin.

Speaking Of Communication, Who Is This Guy?!?

This could not wait until next week! This guy [actually his name is Guy Goma] showed up at the British Broadcasting Company [BBC] for an interview for IT job. Watch the live televised interview before reading the rest of this post.

You did it watch it, right?!?

Well, as it turns out there was a mix-up because two guys named Guy showed up for interviews—one was there for an on-air discussion about online music; the other was applying for a job. The receptionist made a mistake. She thought Guy Goma was a different guy [Guy Kewney] who is an expert and was actually scheduled to discuss a trademark lawsuit over Apple Computer’s use of a logo in its online music store – iTunes. Unfortunately for the BBC [and fortunately for us], it interviewed Mr. Goma about the lawsuit, on live TV!

Now, watch it again – look at Mr. Goma’s expression when he realized he was the “wrong guy” and appreciate how smooth he was in continuing with the interview! Notice the interviewer missing his expression and, undaunted, just marching forward! Maybe she had no choice – it was live TV.

All to say, as mediators don’t we always have to check for the shared meaning of words to make sure we’re all on the same page? Well, sure we do! Remember my mantra – nothing is as it seems nor is it otherwise! Huh?!?

To email me, click Perry S. Itkin.

Email Misunderstandings Can Make Us Better Mediators!

Mediation depends on clear communication. How well does the “sender” clearly convey their ideas and their feelings? How well does the “receiver” correctly decode those ideas and feelings? The answers to these questions, and other meaningful observations, are contained in this article from the Christian Science Monitor which covers a scholarly study into the question of whether electronic communications convey ideas clearly. Their conclusions will make us better mediators, I think, and the article is worth reading – short, content rich, and to the point!

Have a nice weekend!

To email me, click Perry S. Itkin.

MEAC Opinion 2006-001 Now Online!

Here’s a summary of MEAC Opinion 2006-001 which addresses an advertising issue:

If the quotation provided [“Got Conflict . . . Mediate, Divorce through mediation contested or uncontested. Call 555-5555”] is the complete advertisement and the telephone number relates to a person [or company] that does provide mediation services, it does not violate the mediator’s ethical standard for advertising. However, if the advertising mediator is not competent to mediate the cases advertised, or if there were additional text which was false or misleading, the advertisement would violate Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.610.

Rule 10.610. Advertising

A mediator shall not engage in marketing practices which contain false or misleading information. A mediator shall ensure that any advertisements of the mediator’s qualifications, services to be rendered, or the mediation process are accurate and honest. A mediator shall not make claims of achieving specific outcomes or promises implying favoritism for the purpose of obtaining business.

What does your advertising look like?

To email me, click Perry S. Itkin.

Pre-Spousal Mediation

Huh?!? Look at this from a different angle – wedding mediation. It’s true! Remember the movie “The Wedding Crashers” which began with a divorce mediation scene? How about a prequel – “The Wedding Planners & Mediation”? Okay, I made up that title and not the idea which, according to this article from Sys-con Media, is another venue for mediators. Among the issues to be mediated are:

• Disagreements between the future in-laws regarding the wedding process

• Conflicting traditions

• Intra-family conflicts

• The role of each parent in the wedding process

• Emphasizing common ground between the parties

All to say, could you have used the services of a Wedding Mediator! [More than once?!?]

To email me, click Perry S. Itkin.

Florida Supreme Court Amends Small Claims Rules – Revised Opinion

The Florida Supreme Court revised its opinion In Re: Amendments to the Florida Small Claims Rules, Case No. 05-146 [Fla. 2005]. It declined to adopt proposed revisions to Rule 7.090, Appearance; Defensive Pleadings; Trial Date, regarding mediation to occur at the pretrial conference. The proposed rule would mandate that each party or their counsel have full authority to settle. Of greatest concern to the Court was that it would allow sanctions for failure to comply, including costs, attorneys’ fees, entry of judgment, or dismissal. Among the concerns about this proposal was the impact it would have upon a party who must send counsel to such conferences on short notice without an adequate opportunity to fully prepare for settlement negotiations.

The Court, recognizing the importance of this effort at encouraging a mediated settlement, referred this proposed amendment back to the Small Claims Rules Committee for further consideration.

However, the Court did adopt a new form, Form 7.350 Corporate Authorization To Allow Employee To Represent Corporation At Any Stage Of Lawsuit. Guess what that includes?!? If you guessed mediation, you were right – congratulations!

To email me, click Perry S. Itkin.

Mediation And The Estate Of Rosa Parks

According to this article in The Detroit News, relatives of Rosa Parks and her longtime associate agreed to try mediating their dispute over dividing and controlling the civil rights legend’s estate. Just as I had posted last year in a different mediated dispute involving Rosa Parks, it has been suggested that mediation could serve as an opportunity for family members to vent their concerns outside the public domain. Throughout the dispute, everyone has said they want to preserve Parks’ dignity and legacy. This pro bono mediation is scheduled for May 17th.

To email me, click Perry S. Itkin.

This Is Huge! Florida Supreme Court Adopts Amendments to Florida Rules for Certified and Court-Appointed Mediators!

With an effective date of August 1, 2006 in In Re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, Case No. SC05-998, [Fla. 2006] the Florida Supreme Court today adopted proposed amendments to Florida’s Rules for Certified and Court-Appointed Mediators, which replaces the current mediator certification requirements contained in Rule 10.100 with a new certification requirements “point system,” outlined in an administrative order which is attached to the opinion. This provides applicants with more flexibility in obtaining certification and has the potential to increase the diversity of the mediation profession in Florida!

In addition to the new point system for certification, certain ethical rules have been amended. The revised rules [with the changes in bold] are as follows:

Rule 10.360. Confidentiality (a) Scope. A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to by all parties.

Rule 10.370. Advice, Opinions, or Information

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

Rule 10.420. Conduct of Mediation

(a) Orientation Session. Upon commencement of the mediation session, a mediator shall describe the mediation process and the role of the mediator, and shall inform the mediation participants that:

(3) communications made during the process are confidential, except where disclosure is required or permitted by law.

It’s well worth your time to read this 48 page opinion!

To email me, click Perry S. Itkin.

What Does A Hairdresser Have To Do With Co-mediation?

The hairdresser [whose husband was a mediator and whose client was also a mediator] introduced the two. According to this article from the New York Law Journal this female and male co-mediation team in New York brings a gender balanced perspective to family mediation which the couples with whom they work seem to like. You can also learn a bit about the business aspect of co-mediation.

To email me, click Perry S. Itkin.

Humming Is Not A Good Technique!

According to this article in The Connecticut Law Tribune, a matrimonial lawyer was recently reprimanded for humming the “Twilight Zone” theme song during a conference [i.e., heated argument] about a proposed psychological examination for the former wife who questioned the need for such an exam.

We can learn from this lawyer’s experience[s]!

Florida’s Rules for Certified and Court-Appointed Mediators addresses this type of conduct in the following rules:

Rule 10.350. Demeanor

A mediator shall be patient, dignified, and courteous during the mediation process.

Rule 10.410. Balanced Process

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.]

All to say, you would never do such a thing – right?!? Not even in caucus. But . . you knew that!!!

As an aside, I’ve been training and hence not posting; plus, a road construction worker knocked out a main telephone trunk line and our entire geographic quadrant is without telephone service. All to say, service is supposed to be restored sometime next week [sure!] and posting may be difficult over the next several days.

To email me, click Perry S. Itkin.

“I Heard You But I Didn’t Listen!”

Admit it [I did]! When we were children and our parents told us not to do something but we did it anyway, weren’t we scolded by our parent[s] with “Didn’t you hear what I told you?” Didn’t we respond with, “I heard you but I didn’t listen!” As mediators we no longer have the “luxury” of hearing without listening [but you knew that, right?!?]. Here’s a quick primer from the Law Library Resource Exchange which reminds us that effective communication depends on learning to listen.

To email me, click Perry S. Itkin.

If All Else Fails, There’s Always . . .

. . . the tried and true method of dispute resolution we learned when we were younger [and for some of us – much younger] - rock paper scissors! According to this article in The Valdosta Daily Times the World Rock Paper Scissors Society, whose motto is “serving the needs of decision makers since 1918”, takes this ADR process seriously. Interesting reading!

To email me, click Perry S. Itkin.

“It Ain’t Over Till It’s Over!”

Quick – who said that? If you answered Yogi Berra you were correct [good job] in your thinking! However, that Yogiism was actually something a bit different. What he really said was “You’re never out of it ‘til you’re out of it” in regard to the 1973 National League pennant race. How is this related to mediation? The First District Court of Appeal case of Quinlan v. Ross Stores, et al., 2006 Fla. App. LEXIS 5849 [Fla. 1st DCA 2006] held that because the contingencies to the final settlement set forth in the Mediation Settlement Agreement had not occurred, the trial judge was correct in denying appellant’s Motion to Enforce a Proposed Settlement Agreement [i.e., a final and enforceable agreement was never made]. All to say, “it ain’t over till it’s over”!

To email me, click Perry S. Itkin.

“Extended Family” Mediation – Is That Real?

Well, not exactly! Last year I wrote about the new meaning given to Family Mediation in this post which was about the Gambino family mediator. Here’s another family extending the meaning of mediation to a “wiseguy” in the Genovese family. As mediators we must be doing something right – lots of interesting people want to become involved in our gig.

To email me, click Perry S. Itkin.

Resolution Report, April 2006, Now Online!

You can access the April, 2006 online issue of the Dispute Resolution Center’s Resolution Report here.

Plus, you can go directly to my Case and Comment article which appears in that issue.

Take a look!

To email me, click Perry S. Itkin.

The Pause That Refreshes Doesn’t Always Have Bubbles!

Ok, a popular soft drink has nothing to do with this short and comprehensive article on negotiation by Professor Wertheim of the College of Business Administration at Northeastern University. It’s a good reason, though, to pause and refresh ourselves with this nice overview of negotiation. Take a look!

To email me, click Perry S. Itkin.

“I Really Mean It! If You Had Only Told Me!”

In a prior post the Fifth District Court of Appeal imposed sanctions against a party and counsel for failure to appear at an appellate court ordered mediation and the court explained why it did so. In Doorstep Beverages of Longwood, Inc. v. Willie J. Collier, et al., 31 Fla. L. Weekly D 622 [Fla. 5th DCA 2006] the court again sanctioned a party for failure to appear at a court ordered mediation without good cause – i.e., they never asked the court to be excused from appearing.

Oh well, some people never learn! A court order is not merely an invitation to do something if one feels like it – it’s a court order for Heaven’s sake!

To email me, click Perry S. Itkin.

Procedural v. Substantive Good Faith

What?!? You know – substantive good faith, i.e. “You’re not mediating [read “negotiating”] in good faith”! How do you measure that? It’s much easier to demonstrate procedural good faith or the lack of it as is shown by the Second U.S. Circuit Court of Appeals’ unpublished order in Negron v. Woodhull Hospital, et al., 2006 U.S. App. LEXIS 9004 [2^nd Cir. 2006].

After the Hospital voluntarily agreed to mediate with Negron, the district court ordered both parties “to appear and mediate in good faith.” [Notice that’s 2 things for the parties to do – I read it as to appear in good faith {demonstrable} and to mediate in good faith {not demonstrable}]. The district court found the Hospital to have violated this order when the Hospital disobeyed the instructions of the mediator [Hmmm!!!!!] by failing to bring a principal party with settlement authority to the mediation [at the least, don’t the court rules require this?]. The Court of Appeals found that while the Hospital was free to adopt a “no pay” position [see, you don’t even have to make an offer at mediation and that’s substantive], its failure to bring a principal party was a violation of a court order and impaired the usefulness of the mediation conference. Perhaps the instructions of the mediator were for the parties to abide by the court order [a very good move].

To email me, click Perry S. Itkin.

When Is A “Done Deal” Not A “Done Deal”?

When, according to the First District Court of Appeal decision in Fivecoat v. Publix Supermarkets, Inc., 2006 Fla. App. LEXIS 5285 [Fla. 1st DCA 2006], a party’s attorney does not have “clear and unequivocal authority to settle on the client’s behalf.”

Okay, how about the meaning of “I don’t have any choice”? I’m certain you’ve heard that before – what does it mean? When you read the opinion you’ll see that it’s not what you’re probably thinking!

To email me, click Perry S. Itkin.

As Good As We Are, Can We Improve Our Training?

The Dispute Resolution Center is accepting written proposals for the purpose of conducting an assessment of the design, delivery and administration of Florida Supreme Court certified county, family, dependency and circuit civil court mediation training programs and making recommendations to implement quality improvements to the same.

The Request for Proposal has a July 5, 2006 4:00pm deadline for submissions.

There’s some interesting background about Florida’s mediation training programs in the RFP.

To email me, click Perry S. Itkin.

What Does The ADR Rules And Policy Committee Do?

Here’s a press release from the Florida Supreme Court on the most recent meeting in Tallahassee of the ADR Rules and Policy Committee [I’m proud to be a member]. It provides a quick overview of some of the items the Committee is working on.

To email me, click Perry S. Itkin.

“Prove It!”

Here’s something for Dependency Mediators. [I know, mediators don’t have to prove it – DCF does.] In J.B. III, Father of J.B., a child v. Department of Children and Families, Case No. 1D05-3387 [Fla. 1st DCA 2006], the First District Court of Appeal reminds us that for a dependency adjudication to be affirmed, there must be competent, substantial evidence that a child was either: (1) abused, abandoned, or neglected by the parents; or (2) at imminent risk of being abused, abandoned, or neglected by the parents. F.S. 39.01(14)(a) & (f). In this clear opinion the court provides a nice explanation of the law as applied to the facts – some things to think about for Dependency Mediators!

To email me, click Perry S. Itkin.

Mediating Felonies – You’re Kidding, Right?

Not really. According to this article in the Colorado Springs Gazette a very successful Felony Alternative Dispute Resolution program has been implemented in the 4th Judicial District. It originally was designed for lower level felonies and has been expanded to felonies involving deaths. The article reports that all levels of the criminal justice system think the program has merit – judge, prosecutors, defense attorneys, victims and victims’ families.

To email me, click Perry S. Itkin.

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.