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.