Mediating In The Dark!

Okay, not really in the dark – but what about mediating for a very, very, very long, long session – i.e. the “marathon mediation” [start early – stay late – keep the light on for you]? Have you ever had that experience or heard an anecdote about one? Here’s a criminal case with an interesting parallel and lessons for us.

The First District Court of Appeal in Green v. State, 32 Fla. L. Weekly D 691 (Fla. 1st DCA 2007), affirmed a jury’s guilty verdict in a case where at approximately 4:00p.m. defense counsel requested that the trial be adjourned and resumed the next day so that the jury would have enough time review all the evidence. The trial judge asked the jury what they wanted to do and they decided to work into the night [sound familiar?!?]. Two jurors had to go to work the next day. Closing arguments concluded at 9:20p.m. and the jury returned its verdicts shortly after midnight.

While the general proposition is that jury trials should not continue late into the evening, the appellate court affirmed the jury’s verdict because the trial judge had asked the jurors what they wanted to do, and the court repeatedly checked their mental state to make sure they could continue with their deliberations [excellent practice for mediators to keep in mind!].

This opinion is worth reading for other practice ideas as well.

To email me, click Perry S. Itkin.

“It’s Clear To Me.” “Me Too.”

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

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

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

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

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

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

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

To email me, click Perry S. Itkin.

The Mediator Who Wasn’t!

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

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

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

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

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

To email me, click Perry S. Itkin.

Be Careful Of What You Don’t Ask For!

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

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

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

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

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

To email me, click Perry S. Itkin.

MEAC Opinions – Now Online By Subject Matter!

Whoa! You’re really going to like this!

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

Advertising/Solicitation

Advice Opinions or Information

Business Practices

Confidentiality

Conflicts of Interests

Procedures

This is a treasure trove!

To email me, click Perry S. Itkin.

Mediation Survives!

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

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

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

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

To email me, click Perry S. Itkin.

More Excellent Florida ADR Reference Materials On-line!

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

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

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

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

To email me, click Perry S. Itkin.

Talented Mediators & Salt – A Commonality?

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

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

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

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

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

To email me, click Perry S. Itkin.

“The Judge Did What?!!?”

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

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

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

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

How about that!

To email me, click Perry S. Itkin.

Almost There – Light At The End Of The Tunnel

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

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

To email me, click Perry S. Itkin.

Are You A “Persuasion Master?”

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

These are among the concepts mediators utilize daily.

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

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

To email me, click Perry S. Itkin.

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

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

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

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

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

To email me, click Perry S. Itkin.

Mediator On A Tightrope – MEAC Opinion 2006-003!

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

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

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

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

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

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

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

To email me, click Perry S. Itkin.

MEAC 2005-007 Now Online!

Here’s a summary of MEAC Opinion 2005-007 which addresses the scheduling of a mediation conference, rescheduling a mediation conference, and party nonappearance:

1. If a party is requesting that the mediation be rescheduled for “good cause,” the mediation should be rescheduled to a mutually convenient time consistent with Florida Rules for Certified and Court-Appointed Mediators, Rule 10.330(a). If the party is objecting to attending mediation, the mediator cannot compel attendance, however, the party should be advised that pursuant to Florida Family Law Rules of Procedure, Rule 12.741(b)(2), the party may be subject to sanctions by the court for “nonappearance.”

2. A report to the court regarding nonappearance should not include any reason for the nonappearance.

3. A date for mediation may be set without the advance agreement of all parties, but then any party would be permitted to request that it be rescheduled.

4. A mediator may report non-appearance at a mediation if the mediator gave the non-appearing party due notice of the date and time for the mediation session and good cause was not shown for rescheduling.

Although the question raised in this Opinion was in the context of a family mediation, the lessons are applicable in other mediations. For example, take a look at Florida Rules of Civil Procedure, Rule 1.720.

This is a very interesting and informative Opinion and is well worth reading!

To email me, click Perry S. Itkin.

Mediation Without Borders

Here’s a splendid letter from Ken Cloke and Robert Creo to all Mediators!

“We are thrilled to announce the creation of Mediators Without Borders (MWOB). MWOB is a non-profit provider of pro bono conflict resolution capacity building within post-conflict communities.

A key goal of MWOB is to develop indigenous skills for group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.

The concept is for teams of volunteer mediators to conduct skill-building workshops consistent with the norms, values, and culture of the locale.

The Mission is to increase the capacity of hostile communities to prevent, resolve, and recover from violent conflict. An array of conflict alternatives can be explored by strategic integration into the political, economic, and social institutions. The same team would volunteer for between 1 – 3 weeks per year, over a number of years in the same country, to build sustainable initiatives and to develop local peacemakers and peacekeepers.

The current business model is to partner with existing NGO’s and ADR entities to provide experienced mediators as trainers and consultants to complement and expand the conflict resolution capacity of already funded peace projects.

Ken Cloke is the key founder and leader of Mediators Without Borders. He has assembled a dedicated team of mediators to implement this vision of MWOB.

The entity has been legally established and is being housed in Pittsburgh with office space and other support donated by Bob Creo, one of the incorporators of MWOB.

MWOB needs funds for staffing and administrative overhead to effectively implement the MWOB mission. There is an administrative plan to share the services of Ms. Anjali Soi, Executive Director of Mesites Foundation, also headquartered in Pittsburgh, with MWOB and hire a part-time administrative assistant.

The business plan provides for an annual administrative budget for cash flow purposes estimated at a modest $3,000 per month in the first year of operation. We expect to be filing for grants for the 2007 – 2008 grant cycle, but need to raise funds from the mediation community to implement an effective infrastructure. Ken and Bob, together with the Steering Committee of: Nan Walker Burnett, Lynn H. Cole, Sandi DiMola, Helen Dekovachich, Richard DeWitt, Erica Ariel Fox, Joan Goldsmith, C.J. Larkin, and Rachel Wohl, seek your participation as a Charter Mediator Member of MWOB.

This requires an annual dues commitment of at least $1 per day for an initial two year pledge period.

Only Member Mediators are permitted to volunteer to intervene abroad in specific projects. Over the next several months, we will be creating the web site, which will provide updated information as this project rapidly moves forward. We also seek networking assistance from the Mediator Members to identify potential partners, projects, and indigenous peacekeepers.

Please consider becoming a Mediator Member of a Supportor by completing the Dues Pledge Form on the web page link . . . and returning it with payment promptly.

Please feel free to contact any of the Steering Committee or Anjali Soi at anjalisoi@gmail.com or 412.441.1151 for additional information.

Please pass this letter and information onto any other interested mediators. I hope you can join us on this exciting and worthwhile endeavor.

Ken Cloke, kcloke@aol.com and Bob Creo, robertacreo@cs.com”

To email me, click Perry S. Itkin.

Nat Fein – Mediator!

Who?!? This 1949 Pulitzer Prize winning photograph of Babe Ruth [“Babe Bows Out” taken June 13, 1948] is a fabulous picture – why – because it was taken from the back instead of from the front like thousands of other pictures! The photographer, Nat Fein, thought outside the box – thought and saw differently than others – i.e. from different angles [well, he could have been a mediator – don’t you think?].

According to this article in The National Law Journal, civil actions ending in creative settlements that do more than put money into the pockets of plaintiffs and their lawyers are unusual BUT [and you know what that means] they are increasing – try charitable donations, tax breaks, defendants instituting safety programs, apologies – just to name a few imaginative ideas for settlements. Hey, how about that?!!? The power of self-determination – simply amazing!

It’s not always just about the money! Really – it’s not!

To email me, click Perry S. Itkin.

“Go Directly To Jail; Do Not Pass Go; Do Not Collect $200.00!”

What does The Monopoly Game have to do with mediation? Nothing actually, although the case of Higgins v. Higgins, 2006 Fla. App. LEXIS 20867 [Fla. 2nd DCA 2006] is illustrative of the relationship between being jailed by a trial judge who later orders the same party to mediation [on the very same day, no less]!

The former wife in this post divorce case was held in direct criminal contempt of court during a hearing, summarily sentenced to jail for 6 months, actually jailed and then returned to court later the same day when the same judge ordered her and her former husband to mediation in the office of the court mediation program. Any problems that you see so far?

Okay, how about prior to ordering the parties [who were pro se] to mediation the judge had announced to the former wife that her attempt to relocate with the parties’ minor child was barred by court order [which it wasn’t] and unlawful and that was one of the reasons for the contempt conviction? It’s not getting better, is it?!?

As a result of the mediation, the parties signed a document entitled “Order” as did the “Mediator[,] Preparer of Order of Court.” [Mediators as “Guardians of the Process” - o.k.; mediators as “Agents of Reality” - o.k.; but mediators as “Preparers of Order of Court” - not o.k.] This order transferred custody of the minor child from the mother to the father. You guessed it, the former wife/mother appealed the order of contempt and the order modifying custody.

How significant were the “highly coercive circumstances”, devised by the trial judge, to the appellate court which reversed the trial judge. The wheels of justice don’t move so quickly [what else is new?!?] – the hearing was held in January, 2006 and this appellate decision was issued in December, 2006.

To email me, click Perry S. Itkin.

“Good Luck” Mediation

Whaaat?!!?? Well, according to this article in the Livingston Daily Press and Argus, a trial judge is alleged to have prevented lawyers in a divorce case from selecting their own mediator because the judge “was not having good luck” with the named mediator. Hmmmm!!! There’s more too and you’ll have to read the article. If the allegations are true, isn’t this outrageous?!? What about party self-determination for starters? Anyway, you be the judge [or not]!

To email me, click Perry S. Itkin.

“Come On Down!”

Okay – this isn’t The Price is Right although the price really is right as you will see; plus you don’t have to be from Florida to participate. Of course, if you are from Florida you already know you can submit workshop proposals – and please do.

The Dispute Resolution Center is now accepting workshop proposals for its 16th Annual Conference for Mediators and Arbitrators, August 23 - 25, 2007 in Orlando, Florida.

The goal of the Conference is to provide educational opportunities that will be of interest and benefit to professionals involved in the field of conflict resolution. Workshop proposals should be designed to enhance knowledge and skill levels for the seasoned practitioner.

Presenters selected for participation will be given a reduced Conference registration fee of $50.

Complete the Call for Proposals application and mail, email or fax it to the Dispute Resolution Center postmarked on or before February 1, 2007 [it’s not that far away]. A separate application must be submitted for each workshop. If you have questions, email Kimberly Kosch at koschk@flcourts.org.

A change from prior conferences is a revision in all individual workshops which will be 2.0 CME credits (as compared to 1.8 hours previously). This change will allow mediators to complete their 2 hour CME requirements in one workshop rather than having to take one plus workshops to get their 2.0 hours.

As in the past, the conference will be held at the Rosen Centre Hotel, 9840 International Drive, Orlando, Florida 32819 and the DRC Lodging Rate is $99.00. Here’s the number to call to make a reservation 1-800-204-7234.

To email me, click Perry S. Itkin.

We're Still Waiting!

Here’s an update on my prior post on the status of the requirements to become a Circuit Court Mediator certified by the Florida Supreme Court.

The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy has submitted to the Florida Supreme Court proposed amendments to the Florida Rules for Certified and Court Appointed Mediators. The committee proposes new rule 10.105, Point System Categories, and amendments to rule 10.100, Certification Requirements, that incorporate the recently adopted basic point requirements for certification as county, family, circuit, and dependency mediators. Essentially, the point system was removed from the Court’s Administrative Order and incorporated into the Rules.

Consistent with the Court’s prior opinion, the proposed amendments to rule 10.100(d), Circuit Court Mediators, include the requirement of Florida Bar membership that was retained by the Court until it could consider requested input from The Florida Bar on the requirement. The committee continues to urge the removal of the Florida Bar membership requirement. The Bar takes the position that the requirement of Florida Bar membership should be retained for circuit court mediators, but that the applicant also should be required to have been a member of The Florida Bar or other bar jurisdiction, in good standing, for the five years immediately preceding an application.

The Court invites all interested persons to comment on the committee's proposed amendments.

Please submit your comments.

To email me, click Perry S. Itkin.