“Yes You Did! No I Didn’t!”

Frequently parties want a confidentiality agreement as part of their settlement. Here’s an example of why it is necessary to be detailed in drafting what precisely constitutes a violation of the confidentiality agreement. University of Alabama football coach Mike Price and Time, Inc.’s Sports Illustrated had been engaged in a two-year defamation litigation resulting in a settlement which contained a confidentiality provision. Price declared a “great victory”and Time, Inc. said this, among other things, constituted a violation of the confidentiality agreement and wants the agreement thrown out according to this article in the Fulton County Daily Report and this article from NBC13.com.

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Hurricane Wilma Knockout!

I have not been able to post since last Friday due to Hurricane Wilma’s power knockout – no electricity equals no blogging, among other things! As of today I still have no electricity. Today’s post is battery operated with a lot of luck. I won’t be posting for the rest of this week since (a) we have no power and (b) I have a 40-hour Circuit Civil Mediation Certification training this week which ends on Sunday [the Broward County Bar Association is fully operational, fortunately]. All to say, I’ll resume regular posting next Monday – if Florida Power and Light restores service by then! If not, I’ll figure something out!

U.S. Supreme Court Nominee Harriet Miers – A Mediator!

According to this editorial in The Herald Bulletin by the Chairman of Indiana’s Republican Party, U.S. Supreme Court nominee Harriet Miers was a tough, fair mediator. This article in Legal Times reports that for nearly 30 years she was a mediator of mundane business battles. See even mediating mundane cases can be tough – or something like that.

The “supreme” irony [pun intended] is that Ms. Miers was nominated to replace retiring Justice Sandra Day O’Connor who has been viewed as the U.S. Supreme Court’s mediator as reported here in this earlier post.

Hurricane Wilma is headed this way – who knows where we will be on Monday. Be prepared and stay safe!

To email me, click Perry S. Itkin.

It Was Only a Matter of Time – A Reality Show Involving Mediation!

Really? Yes, according to this article in The Daily Record. O.K., it’s in the U.K. not the U.S. - will we be far behind? The show, advertised on BeOnScreen offers cash to families willing to have the realities of their separation, mediation and divorce televised. While mediators are already stars, is this a good way for you to shine? Is this an intelligent format within which to educate the public about mediation [and, yes, there’s still a lot of educating to be done]? What do you think?

Florida’s Mediator Ethics Advisory Committee [formerly known as the Mediator Qualifications Advisory Panel] was prescient on this issue when it promulgated Opinion 97-008, which in summary states “[p]roducing a TV show with real parties in a live mediation is not a violation so long as the parties are informed of their right to confidentiality and waive it.” [Unfortunately, the link to the opinion does not work; if you’d like a copy of the opinion, please email your request to me and I’ll email the opinion to you.]

To email me, click Perry S. Itkin.

Whaaat?!? – A Free Lunch?!?

There really is such a thing as a free lunch! Well, sort of. In the case of Morgan v. Steiner, 2005 N.C. App. LEXIS 2105 [N.C. App. 2005], the parties participated in a mediation conference and did not reach a settlement. Steiner made an offer of judgment which Morgan rejected. The jury returned a verdict for Steiner. Under North Carolina’s rules of civil procedure, plaintiff must pay defendant’s costs if plaintiff rejects a settlement offer more than ten days before trial and the final judgment is less favorable than the offer. [This is like Florida’s offer of judgment – but, you knew that!] The trial judge awarded Steiner costs, including the costs of mediation. Morgan appealed. The North Carolina Court of Appeals upheld the award of mediation costs, but found that the trial court had erred in including the cost of lunch provided by Steiner at the mediation settlement conference because state statute did not specifically authorize an award for that cost.

And you thought I was kidding!

To email me, click Perry S. Itkin.

Sometimes Gift Giving Is Not a Good Idea!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.330(c), Gifts and Solicitation, provides, in part, that

A mediator shall neither give nor accept a gift, favor, loan, or other item of value in any mediation process.

What are the consequences of a mediator giving gifts of lunches, gift baskets and cash? [That’s right – cash. I know, you’re wondering what mediator in their right mind would give cash!] According to this article from Newsday, the chief of the New Jersey state panel that hears labor disputes has been demoted, following an ethics probe that found his employees accepted gifts and cash from individuals and law firms seeking work as mediators.

By the way, there are two Mediator Ethics Advisory Committee opinions on the topic of mediator gift giving, 2001-006 and 99-005. They are worth reading!

To email me, click Perry S. Itkin.

Reprehensible Negotiation Tactics Just Don’t Cut It!

Although this Third District Court of Appeal case is not a mediation case specifically, it does provide some insight as to how a court evaluates reprehensible negotiation tactics - alternatively characterized as bad faith [arbitrary negotiation] in this corporate statutory structure or negotiation by extortion, generally. Neither was helpful to the appellant in Morales v. Rosenberg, 2005 Fla. App. LEXIS 16284 [Fla. 3rd DCA 2005]. As mediators, don’t you think we should be alert to these tactics and their consequences?

To email me, click Perry S. Itkin.

Referral to Mediation Forestalls Claim for F.S. 57.105 Attorneys’ Fees

The Second District Court of Appeal in Connelly v. Old Bridge Village Co-op, Inc., et al., 2005 Fla. App. LEXIS 16307 [Fla. 2nd DCA 2005] reversed an order awarding attorney’s fees and costs under section 57.105(1), Florida Statutes. In this unique case, a motion to dismiss was filed and instead of ruling on it the court ordered the parties to mediation which resulted in an impasse. Part of the rationale for the appellate court’s reversal of the award was that “the referral to mediation suggested that the declaratory judgment action had some validity or at least was not so devoid of merit as to be obviously and apparently unsupported by the material facts necessary to establish the claim.”

How about that? Isn’t the aura of mediation something?!?

To email me, click Perry S. Itkin.

Breach of Confidentiality – Is There Liability for The Mediator or Mediation Participant?

Suppose, just suppose, the mediator makes a wrongful disclosure of confidential information. Okay, you don’t want to suppose that – then suppose, just suppose, a mediation participant makes the same wrongful disclosure. Still not pleasant, I realize. Yes, mediators have two types of statutory immunity from liability – “absolute” and qualified – F.S. 44.107. That does not necessarily prevent someone from filing a lawsuit. I know, this is not getting better. We now have a Mediation Confidentiality and Privilege Act which provides a civil remedy for its violation in F.S. 44.406. Where is all this going you wonder?

In Woodward v. Jupiter Christian School, Inc., 4D04-3531 [Fla. 4th DCA 2005] decided today, the issue was whether Florida’s “impact rule” applies to a claim for negligent infliction of emotional distress arising out of a breach of a fiduciary duty of confidentiality. Both the majority opinion and the dissenting opinion contain thorough, cogent analyses of the issue. The opinion is well worth reading and to think about whether there is liability for the mediator or mediation participant in the event of a breach of confidentiality. Really, please think critically about the potential here.

To email me, click Perry S. Itkin.

“I’m Divorced; I’m Divorced; I’m Divorced!”

Not me personally! According to this article in the Khaleej Times, a husband saying Talaq three times, even in the presence of the wife, is not sufficient ground for divorce. The High Court in Kerala has said that under Muslim law, mediation should be undertaken before using the Talaq option in divorce. In that case, the husband argued there was a valid ground for divorce and he was not obligated to pay maintenance. The court didn’t accept his argument. Do you see any similarity to some [okay, more than some] Florida trial judges requiring mediation prior to Final Hearing in a dissolution of marriage case? Of course you do!

To email me, click Perry S. Itkin.

Florida Is Not Alone!

The Gulf Coast has been ravaged by Hurricanes Katrina and Rita. Florida was fortunate this time. However, the damage to Florida wrought by last year’s hurricanes and the difficulties experienced by homeowners with their insurance companies has been addressed through mediation as previously mentioned in Florida Mediator first in this post and in a follow up post. In response to the Gulf Coast Tragedy, the American Arbitration Association has established a new Disaster Recovery Claims Resolution Services program to use mediation to resolve insurance claim disputes between homeowners and businesses and their insurance carriers.

To email me, click Perry S. Itkin.

Is The Mediation Process Abused?

On occasion, parties and counsel abuse the process of mediation. Remember, not all cases, not all parties and not all counsel are suitable for mediation. Having said that, according to this article from Oregon Public Broadcasting, one side in this case involving alleged molestation by priests in the Portland Archdiocese claims the other side is using mediation as a delaying tactic. What do you think?

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“We Must Talk” - Pre-mediation Settlement Discussions Required in Certain Mobile Home Disputes

F.S. 723.037 of Florida’s Mobile Home Park Lot Tenancies statute [Chapter 723, Florida Statutes] requires mobile home park owners and a committee of mobile home owners [or the mobile homeowners’ association board of directors’ designees] to meet within 30 days after receipt by the homeowners of a notice of change in lot rental amounts, reductions in services or utilities or changes in rules or regulations. Ground rules are set forth in the statute. This is a pre-requisite to the parties proceeding to mediation. Is this a good idea?

By the way, as you may have suspected, pre-suit mediation is required before litigation.

To email me, click Perry S. Itkin.

“Respectfully, you can’t do that in a family case either, Judge.”

In Burkley v. Burkley, 2005 Fla. App. LEXIS 15479 [Fla. 5th DCA 2005], the former wife filed a supplemental petition for modification of child support and for breach of contract. The claim for breach of contract was based on a mediation agreement which was previously approved by the trial court: “This [Mediation Agreement] shall not be merged with or into the [Stipulated Order], but shall survive as a separate, enforceable contract on its own and shall be enforceable by either party as such.” The trial judge imputed income to the father, established a child support arrearage, and modified child support based on breach of contract. The Fifth District Court of Appeal reversed because virtually all of the ruling and judgment relied on the trial court’s interpretation of Chapter 61, Florida Statutes which the trial judge ignored and applied erroneously.

So, even though there is a mediation agreement pertaining to child support which did not offer support beyond that provided for in the statute, the court must regard the mediation agreement in the context of the statute’s explicit limitations on modifying support, imputing income, or awarding retroactive support. Do you think this may impact how mediation agreements are drafted as they pertain to child support?

To email me, click Perry S. Itkin.

To Avoid the Death Penalty All You Have To Do Is Ask!

Ok, not exactly! Dismissal with prejudice in a civil case is sort of tantamount to the “death penalty”. In Office Environments, Inc. v. Lake States Insurance Co., 833 N.E.2d 489 [Ind. Ct. App. 2005] the Indiana Court of Appeals upheld a dismissal with prejudice when a party refused to comply with a mediation order to mediate. The Court of Appeals found that Appellant delayed mediation for an unreasonable period of time and did not use the proper channels in refusing to pay for mediation. It really shouldn’t take 3 years to schedule mediation, should it? Pretty good work by the mediator here in attempting to schedule this mediation! Take a look.

To email me, click Perry S. Itkin.