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.

Pre-suit Employment Dispute Resolution Policy Upheld

In Caley v. Gulfstream Aerospace Corp., 2005 U.S. App. LEXIS 23518 (11th Cir. October 31, 2005) an employee’s challenge to the employer’s adoption of a dispute resolution policy [DRP] was dismissed and the dismissal was affirmed on appeal. The plaintiffs’ continued employment after receipt of the policy and accompanying clear notice constituted assent to the DRP’s terms.

The DRP provided an exclusive procedure to resolve covered workplace disputes and when it was implemented it became a condition of continued employment. The DRP established a four-level dispute-resolution process, as follows: Level One: Human Resources Review; Level Two: Management Panel Review; Level Three: Mediation; Level Four: Arbitration. The DRP explained how each level would work and set forth specific discovery rules.

The opinion contains a fairly detailed presentation of the DRP – it’s worth reading! What do you think about this early intervention ADR program?

To email me, click Perry S. Itkin.

Lawyers As Peacemakers

According to this article in the Jacksonville Financial News and Daily Record, the speakers at the Jacksonville Bar Association Judicial/Bar Symposium declared that lawyers have a long way to go before they can be described as peacemakers. Among the interesting concepts mentioned is “the emerging field of lawyer personality”. Any message here for mediators and lawyers?

Speaking of peace, please accept my best wishes to you and your family for a Happy Thanksgiving!

To email me, click Perry S. Itkin.

National Mediation Helpline – Is This A Good Idea?

According to the National Mediation Helpline website, this is a service that will help explain the basic principles of mediation, answer general inquiries relating to mediation and put the inquirer in touch with one of the designated Mediation Providers. The Mediation Provider will then assign a professional and experienced Mediator. A telephone number is offered on the website to encourage callers to speak to an “adviser” who will take some basic information which is forwarded to a Mediation Provider. By the way, the prospective caller is assured of confidentiality during the phone call [I knew you were wondering about that].

So, do you think this is a good idea? Any problems here? Oh, this helpline is in the United Kingdom – not the United States!

To email me, click Perry S. Itkin.

Mediation May Be Taxing!

Well, it’s not exactly what you might be thinking! The Florida Supreme Court, in its opinion In Re: Amendments to Uniform Guidelines for Taxation of Costs, 2005 Fla. LEXIS 2285 [Fla. 2005], has adopted proposed revisions to the guidelines especially since they met the criteria and concerns of the Court’s stated policy of “reducing the impact of costs upon parties, with the ultimate aim of decreasing the overall costliness of litigation.” Under these guidelines, it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken. The revisions are effective January 1, 2006.

Among the litigation expenses that may be taxed are Mediation Fees and Expenses, i.e. the costs and fees of the mediator.

By the way, I was at the Florida Supreme Court ADR Rules and Policy Committee meeting last week which is why no postings were made Wednesday through Friday last week. This is a marvelous committee and I’m honored to be a member!

To email me, click Perry S. Itkin.

“I Didn’t Know What I Was Doing; Don’t Enforce the Agreement!”

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

A mediator shall:

(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 . . . . [Emphasis added.]

Mediators sure have a lot to think about!

What do you think of these circumstances in light of the above rule? After a full day of mediation, a party who was also an attorney [represented by counsel], reached a settlement agreement which was signed by all parties and their counsel. Immediately following the mediation, the attorney-party drove himself to a hospital where he was admitted and diagnosed with a ruptured cerebral aneurysm, sub-arachnoid hemorrhage, and stroke. He underwent surgery the next day and was placed in the intensive care unit for approximately one month prior to his eventual discharge from the hospital. He claims to have no recollection of the events preceding his hospitalization.

He resisted a motion to enforce the agreement and sought rescission on the ground that he was not mentally competent to enter into a contract at the time the agreement was negotiated and signed. The court in In Re: Raines v. Flinn, 2005 U.S. App. LEXIS 24025 [Cir. 9th 2005] affirmed the order enforcing the agreement. Whaaat?!? Well, you’ll have to read part of the opinion to find out why.

To email me, click Perry S. Itkin.

Adversarial Mindsets Don’t Work Well In Mediation – And Then Some!

Some disputes are not suitable for mediation; likewise, some people are not suitable. Did you ever wonder whether any surveys were conducted which included the adversarial mindset and the consequences on performance in mediation? Okay, just in case you did – wonder no more! According to this article in the Law Gazette, a publication of the United Kingdom’s Law Society, a study conducted by the Centre for Effective Dispute Resolution [CEDR] disclosed that 20% of the lawyers participating in mediation were rated as having performed less than adequately. By the way, this was part of a survey of more than 400 mediators.

What factors do you think led to this outcome? Well, you’ll have to read this interesting piece to learn about the conclusions drawn from the survey.

In addition, here’s the Executive Summary if you’d like more details about the mediator audit. “The audit covered attitudes of civil and commercial mediators to a range of issues concerning their personal background, mediation practice and experience, court-annexed mediation, training standards and professional regulation, and the critical factors in achieving successful mediation.”

To email me, click Perry S. Itkin.

Happy Birthday to a One Year Old!

One year ago today Florida Mediator was launched [that might be blogspeak for born - just guessing]. Happy Birthday! Thanks to everyone for your enthusiastic support and thoughtful compliments. I am deeply grateful.

To email me, click Perry S. Itkin.

A Perfect Example!

Florida Rules of Civil Procedure, Rule 1.730. Completion of Mediation, provides:

(a) No Agreement. If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. [Emphasis added.]

According to this article in the Pine Bluff Commercial, the obstacle to resolution of this dispute over unpaid jail fees involved how the trial judge would define a particular phrase which was central to the disputing parties. The judge’s ruling came after 20 hours of mediation spanning a 2 day period and both sides find it helpful in facilitating the possibility of settlement.

To email me, click Perry S. Itkin.

Judicial Exhortation To Settle – Will It Work?

Along the same lines as seen in today’s post A Perfect Example!, is a federal court judge’s exhortation [and an inclination as to how he might rule on a particular point] to the disputing parties to reach a settlement in this highly publicized environmental conflict reported in this article in the Palm Beach Post followed 2 days later by this article in the South Florida Sun-Sentinel. Facing the parties is a tight timeline and other litigation.

Take a look at these articles and learn how the judge and the parties view the entire matter of settlement. Of interest is how the judge empowers the parties in recognizing their creativity contrasted with the court’s limitations. Any insights for the mediator?

To email me, click Perry S. Itkin.

Senior Judges as Mediators – New Rules!

In its opinion in In Re: Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 2005 Fla. LEXIS 2123 [Fla. 2005], the Florida Supreme Court has approved the majority of the recommendations of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy along with a commendation to the Committee that its work represents a substantial contribution to the improvement of the administration of justice in Florida. The innovative recommendations are designed to avoid the appearance of impropriety and safeguard against potential ethical violations resulting from dual service as a senior judge and a mediator.

The following Florida Rules are amended:

Civil Procedure
Judicial Administration
Juvenile Procedure
Certified and Court-Appointed Mediators
Family Law Rules of Procedure
Code of Judicial Conduct

Except for Judicial Administration, the effective date of the amendments is January 1, 2006.

To email me, click Perry S. Itkin.

Mediator Ethics Advisory Committee Opinion 2005-001 - Now Online

The Mediator Ethics Advisory Committee Opinion 2005-001 is available online. Here’s the summary:

The Homeowners’ Association [HOA] Program billing procedures do not present any per se ethical concerns related to fees, expenses, or impartiality for a Florida Supreme Court certified mediator who participates in this program so long as the fees and their allocation between the parties are disclosed in advance of the mediation to the parties or their counsel, and the parties are given the option of agreeing to that arrangement or negotiating a different one.

Remember, a mediator is required to give parties or their counsel a written explanation of fees and costs prior to mediation. Florida Rules for Certified and Court-Appointed Mediators, Rule 10.380(c) Fees and Expenses; Written Explanation.

Remember, too, that as with any other ethical matter, a mediator should decline to mediate if the mediator believes the facts and circumstances might impair the mediator’s ability to follow the ethical rules.

To email me, click Perry S. Itkin.

The Resolution Report - October, 2005 Issue - Now Online

The October, 2005 issue of the Dispute Resolution Center’s quarterly publication, The Resolution Report, is now online. Be sure to read my Case and Comment article for some thought provoking appellate opinions!

To email me, click Perry S. Itkin.