Listen to What the Mediator “Advises” or Else! Whaaat?!?

A Massachusetts [could this happen in Florida?] trial judge denied a party’s motion for summary judgment partly on the basis that the defendant insurance company’s failure to follow the advice of several different mediators [notice the plural here] over a four year period could constitute evidence of bad faith refusal to settle in the case. The judge’s lengthy opinion [it takes some time to download] in Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company, Civil Action No. 95-3079-A [Mass. Superior Court 2004] contains the following language on pages 11 and 12:

“At least one factor deprives [Wausau] of the conclusiveness necessary for summary judgment . . .: the recommendation of the mediator James Lynch that Wausau should make an offer in the vicinity of the policy limit.”

“The detailed chronology recited above contains abundant indications of issues of irrational or bad faith behavior . . . includ[ing] . . . Wausau’s imperviousness to the views of mediator Steadman...[and] Wausau’s continuing immobility against the views of mediator Shubow”.

Hmmm! Do you have a problem with mediators giving advice? Take a look at Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.370 Professional Advice Or Opinions

(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce 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.

Wait!!! What about the confidentiality of mediation communications? Take another look at the confidentiality provisions of Florida’s Mediation Confidentiality and Privilege Act, especially F.S. 44.405.

And, in the spirit of mediation, can you think of anything else?

You might like to know that this decision has been appealed.

To email me, click Perry S. Itkin.
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What is “Constructive Advocacy”?

“You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone!”

Imagine family law advocacy described as a process of candor, courtesy, cooperation, efficiency, less cost [financial and emotional], mutually acceptable resolutions, reduced stress, reduced waste of resources and respect. Don’t these principles sound familiar to mediators?

“Constructive advocacy” is a counseling, problem-solving approach for people in need of help in resolving difficult issues and conflicts within the family. This approach includes consideration of all available means of settling disputes – including, [guess what?!?] mediation.

Where does all of this come from? The Family Law Section of The Florida Bar has published Bounds of Advocacy: Goals for Family Lawyers as a guide to Family Lawyers confronting professional and ethical dilemmas. Among the global tenets is “constructive advocacy” as the goal of all family law attorneys.

For some serious educational fun, while reading Bounds of Advocacy [it really is worth reading], try substituting the word “Mediator” for the word “Attorney” where you believe the Goal would have application to Mediators [especially in Sections 2 and 3] and learn just how comfortable the substitution feels. It’s an interesting exercise!

Thank you Family Law Section for publishing this for Family Lawyers – it’s also a good tool for Family Mediators to have at mediation and to share with those engaging in “Destructive Advocacy”!

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“Think About It!”

During mediation we are required to think [i.e. make decisions] about such matters as which technique to employ, what strategy will work here, why the parties are stuck, whether a party is meaningfully participating in mediation, whether mediation should be adjourned or terminated, and so on. Even though the parties are the primary substantive decision-makers in mediation, we are the primary procedural decision-makers [mediators control the procedures to be followed during mediation].

This article appearing in the June, 2005 Link and Learn Newsletter is a very helpful 7 step decision-making guide which we can use during mediation. It has an organizational development focus and is quite adaptable for mediation. Take a look and “think about it!”

Have a pleasant weekend!

To email me, click Perry S. Itkin.
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Just What is “Nonverbal Conduct Intended to Make an Assertion”?!?

Florida’s Mediation Confidentiality and Privilege Act defines “Mediation Communication” [F.S. 44.403(1)] as:

an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication.

How does “nonverbal conduct intended to make an assertion” work in the real world?

At this time, there are no Florida appellate opinions interpreting this phrase. However, Bridges v. Metromedia Steakhouse Company, L.P. d/b/a Ponderosa Steakhouse, 807 N.E.2d 162 [Ind. Ct. App. 2004] in a case of first impression, is instructive for us. One of the main issues is whether the trial court abused its discretion when it allowed an insurance adjuster to testify regarding the extent of Bridges’ injury based upon her observation during the parties’ mediation.

It’s easy to read and interesting!

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Pre-Suit Circuit Civil Mediation Agreement is Enforceable

We often think of pre-suit mediation as occurring in only Family cases. However, with increasing frequency, Circuit Civil matters are being mediated pre-suit also.

In Fulford v. Drawdy Brothers Constuction, II, Inc., 30 Fla. L. Weekly D 1386 [Fla. 4th DCA 2005] the Fourth District Court of Appeal affirmed the trial court’s entry of a temporary injunction enforcing a pre-suit mediated settlement agreement which modified a non-compete agreement between a former employer and former employee.

How about that!

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How Do You Make a Sandwich?

We would all agree [I hope] that communication is a critical component of mediation. In fact, Florida’s Rules for Certified and Court-Appointed Mediators,

Rule 10.220, Mediator's Role provides in part “The role of the mediator is to reduce obstacles to communication . . .”

and

Rule 10.230, Mediation Concepts provides in part “Mediation is based on concepts of communication, negotiation, facilitation, and problem-solving . . . .”

Of course, you know how to make a sandwich – right? How would you explain [i.e. communicate] that to an extra-terrestrial? No, really, think about it!! For example, you might start by saying, “Take 2 slices of bread.” Stop! You’re assuming the extra-terrestrial [we’ll call it E.T. – not the movie] knows what bread is, let alone what a slice of bread is. Get the idea!

Well, if you want to actually learn how to communicate and mediate with E.T., here’s a course for you [I am not making this up]. Once you get through the basics, and after the mid-semester break, on October 26th you’ll learn how to apply principles of Conflict Resolution and Mediation to E.T. affairs.

It’s not too late to register! If you do enroll, please let me know how you do on the final exam!

To email me, click Perry S. Itkin.
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“Am I Qualified to Be a Mediator? What’s New?”

The Florida Supreme Court ADR Rules and Policy Committee [on which I serve] filed its Petition to amend Florida’s Rules for Certified and Court-Appointed Mediators relating to revising the qualifications for mediator certification and other matters. The proposed amendments are significant. In addition a proposed Administrative Order has been filed with the Petition. In order to assist in your understanding of the point system, here’s a chart reflecting the proposed changes.

This proposal is extremely important and each of the linked documents is worthwhile reading!

The case number is SC05-998. Written comments and requests for oral argument are due at the Florida Supreme Court no later than August 1, 2005. If oral argument is scheduled, it’s not likely to occur before September, 2005.

What do you think about the proposed revisions?

To email me, click Perry S. Itkin.
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Governor Signs the “Glitch Bill” – Impact on Mediation

The Governor has signed a bill relating to the State Judicial System, otherwise known as the “Glitch Bill” - Chapter 2005-236, Florida Statutes. It impacts mediation in several ways:

• Removes the county obligation to fund mediation for indigents.
• Allows the courts to charge for scheduled mediation sessions - although not explicit, it implies that the courts can charge cancellation fees [this is a big deal for private mediators as well].

In addition, since many mediators are also qualified [the Florida Supreme Court does not certify] arbitrators, this would be of interest: F.S. 44.103(3) was amended to cap the arbitrator’s per diem fee to no more than $1,500.00, unless the parties agree otherwise.

The bill is lengthy, so just go to pages 73 -75 to find the changes to Chapter 44. The effective date is July 1, 2005 [less than 2 weeks from now].

If you’d like a copy of the completely revised Chapter 44, with the new amendments included, please email me.

To email me, click Perry S. Itkin.
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Child Abuse as a Defense?

It’s not what you’re thinking! In the case of S.J.C. v. State of Florida, 30 Fla. L. Weekly D 1257 [Fla. 2nd DCA 2005], the Second District Court of Appeal presents an unusual case, discussing child abuse as a defense by a minor child to the criminal charge of battery [on his mother] – it shows how a parent, intending to use corporal punishment on a child, may cause a child to reasonably expect to be injured sufficient to invoke that child’s right to use self-defense. Hmmm, something to think about when mediators hear someone raise “child abuse” during mediation.

By the way, the Mediation Training Center is a collaborating organization in this year’s Dispute Resolution Center Annual Conference, August 25 – 27, 2005 in Orlando, Florida. Here’s the Conference Brochure and here’s the Registration Form. Looks like a winner!

To email me, click Perry S. Itkin.
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Timing is Everything!

Here’s something new for you: “post verdict-prejudgment mediation”. According to this story in the Daily Business Review, one of Florida’s alleged most infamous organized crime figures won a $13 million dollar civil racketeering verdict [is turnabout really fair play?]. The defense had made a motion for directed verdict on which the judge reserved ruling. The judge then “invited” a defense motion to set aside the jury verdict [that’s a clue] and ordered the parties to attend [you’re so smart, you guessed it!] mediation. Is this sort of like arb-med only called “trial-med”, or something like that?

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“So, How Do I Get Business?”

According to this helpful article in Business Week, the lesson is to network and think outside the box! We ask mediants to do that [think outside the box, that is], why shouldn’t we network like that too?

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Neatness Counts!

Imagine a statute that requires you to be neat in writing a mediation agreement – is this for real? Well, it is and you can find such a statute in Chapter 2005-141 of the Florida Statutes [SB 1312] on page 13, lines 1 – 29, relating to Recreational Vehicles. Actually, the statute gives mediators excellent guidance in reminding us that “the devil is in the details” in drafting an agreement and in setting forth times for performance – good lessons to be learned by reading this section. The statute, by the way, was effective June 3, 2005.

To email me, click Perry S. Itkin.
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“Transsexual Ex-Husband” and “Ex-Wife” Create Their Own Law!

Margo became Michael after a sex change operation in 1987. Michael “married” Linda in 1989. They had 2 children – well not exactly – Michael adopted Linda’s son from a prior relationship and Linda gave birth, in 1992, to a daughter following artificial insemination with sperm from Michael’s brother.

They “divorced” ten years later and Michael [who was Margo] was awarded custody of both children. Linda appealed and in Kantaras v. Kantaras, 884 So.2d 155 [Fla. 2nd DCA 2004], the appellate court in a case of first impression in Florida held that there was no valid marriage and remanded the case to the trial court to declare the marriage void ab initio. What about the children? The appellate court said the legal status of the children was an issue for the trial court to examine.

The parties decided to go to [you guessed it] mediation! The parties agreed to a shared parental responsibility arrangement. Linda makes the educational decisions for the 13 and 15 year old children and Michael makes the extracurricular activities decisions.

According to this article in the HeraldTribune, the trial court judge approved the mediated settlement agreement. Did Michael and Margo create their own legal rights and law? What if a dispute arises between them under the agreement, is the agreement enforceable? What do you think?

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“Great Expectations” - Dispute Resolution Center’s 14th Annual Conference

The Dispute Resolution Center’s 14th Annual Conference for Mediators and Arbitrators, Great Expectations, will be held August 25 - 27, 2005, at the Rosen Centre in Orlando, Florida. Here’s the Annual Conference Brochure and the Registration Form. Pay particular attention to page 6 of the Brochure, Workshop A5!

This is an excellent conference – reserve the dates, reserve your room, enjoy the conference and continue to learn!

To email me, click Perry S. Itkin.
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Florida Supreme Court Amends Family Law Rules of Procedure

The Florida Supreme Court in its opinion In Re: Amendments to the Florida Family Law Rules of Procedure, 30 Fla. L. Weekly S 408 [Fla. 2005] amended, among other rules, those pertaining to Family Mediation. The amendments are effective June 2, 2005.

Rule 12.740, Family Mediation, was amended to reference section 44.108, Florida Statutes, which was amended in 2004 to provide a fee schedule for court-ordered mediation services.

Rule 12.741, Mediation Rules, was amended to recognize the family court's authority under section 44.406, Florida Statutes, to order sanctions for violations of mediation confidentiality provisions. This amendment recognizes the 2004 Legislature's creation of the Mediation Confidentiality and Privilege Act, sections 44.401 - 44.406, Florida Statutes (2004). The rule was further amended to provide that any violation of a confidentiality provision under section 44.405, Florida Statutes, must be knowing and willful for the court to impose sanctions under this rule.

The pertinent pages of the opinion reflecting the above rule changes are pages 36 – 39.

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Good Luck, Mr. President!

According to this article in Turkish Weekly, President George W. Bush may become a mediator between Turkey and Armenia. Good Luck, Mr. President! [I have to be neutral here and not give my professional or personal opinion – Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Professional Advice Or Opinion.]

What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.630, Professional Competence which states:

A mediator shall acquire and maintain professional competence in mediation. A mediator shall regularly participate in educational activities promoting professional growth.

Okay, okay – if not that, then what about the following:

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.640. Skill and Experience.

A mediator shall decline an appointment, withdraw, or request appropriate assistance when the facts and circumstances of the case are beyond the mediator’s skill or experience.

So, what do you think?!? Would mediation training be helpful?!? How about co-mediation?!? Any volunteers?

To email me, click Perry S. Itkin.
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Some Help for Mediating with Pro Se Parties

The Rock County [Wisconsin] Mediation and Family Court Services unit has a nice website with good materials for mediating with pro se parties. Their forms and other information provide ideas that are adaptable to your individual family mediation practice. It’s worth spending some time there [at the website, that is].

No blogging last Thursday [setting up for our CME Seminar] or Friday [the day of the CME Seminar]. The Seminar was terrific and enthusiastically received! Thank you to all who attended!

To email me, click Perry S. Itkin.
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The Value of An Apology

Sometimes “it’s not about the money” or so the saying goes. Is there any validity to that phrase, though, and does an apology have value in mediation? Well, not just in mediation – that’s our focus, however. A good example of the value of an apology is reported in this story in the Arizona Daily Star.

What’s curious is even though the City Attorney and Risk Manager said they couldn’t discuss the case because of the pending lawsuit, how is it that they were seemingly comfortable reporting to the press the statements and negotiations made during mediation? Plaintiff’s counsel had the same comfort level. What about confidentiality folks? Whose privilege is it anyway?

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Volunteer Mediators’ Contributions Are Recognized

As Governor Bush is approving or vetoing legislation from this past session of the Florida Legislature and the press is covering that, I wanted to share with you something that is equally newsworthy from that legislative session. The House of Representatives adopted a Resolution [HR9021] commending Florida’s volunteer mediators for their commitment to their communities and for their dedication to a program that, for their untiring efforts, has become a highly successful method of conflict resolution. The resolution also contains some interesting information about Florida mediation.

Congratulations! A recognition that is well deserved!

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“Mediation’s Aura”

According to this Star Banner article, the judge and the attorney in my prior post titled “Judge v. Attorney Equals Mediation” apparently resolved their differences since the judge vacated his contempt order entered against the attorney. This occurred only after the Fifth District Court of Appeal ordered the two to mediation. It is not known whether mediation actually took place – hence, “mediation’s aura”! Powerful stuff!!!

Enjoy the long Memorial Day weekend and stay safe!

To email me, click Perry S. Itkin.
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“Post-Judgment Mediation”

Ever wonder what value there is in parties participating in post-judgment mediation? After all, a judgment has been entered in favor of one side so “why should I mediate; I already won?!?”

In an earlier post I wrote about “mid-judgment mediation” in the litigation involving Ron Perelman and Morgan Stanley & Co. Now that the jury awarded him $850 million in punitive damages, in addition to the $604.3 million dollar compensatory award, Morgan Stanley has said it will appeal.

Why discuss settlement? According to this Associated Press article there are several reasons both sides should consider it. Hmmm!

No blogging yesterday due to “technical difficulties”!

To email me, click Perry S. Itkin.
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“Mediating Internationally”

England’s Centre for Effective Dispute Resolution [CEDR] has online tips for lawyers who participate in international mediation. Mediators will find it to be a very useful site which identifies potential sources of impasse as long distances, cultural misunderstandings, political interventions and shifting commercial agenda. It’s interesting – take a look!

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“Don’t Settle!”

Here’s a bit of a twist. Clients want to settle. Lawyers advise “Don’t settle”! Clients were happy with the settlement offer. Lawyers were not and gained an additional $1.4 million more in settlement. Sounds good, right? Clients then sued lawyers for malpractice. What?!? According to this article in The Recorder the clients allege that the lawyers inflicted emotional distress on them by prolonging the litigation and subjecting them to depositions and court appearances.

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.410, Balanced Process, provides:

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.

Hmmm!!!! What’s our responsibility to the participants in the above scenario? How would you address the situation if you were the mediator? Would you continue to mediate, adjourn, or terminate? Anything else?

To email me, click Perry S. Itkin.
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“We Made a Mistake – No, You Made a Mistake!”

In DR Lakes, Inc. v. Brandsmart U.S.A. of W. Palm Beach, 819 So.2d 971 [Fla. 4th DCA 2002], the Fourth District Court of Appeal held that a recognized exception to mediation confidentiality and privilege is where the issue is whether there had been a mutual mistake in a settlement agreement and that the trial court should hold a trial on the issue of mutual mistake.

In an opinion, following remand, Brandsmart U.S.A. of W. Palm Beach v. DR Lakes, Inc., 2005 Fla. App. LEXIS 7222 [Fla. 4th DCA 2005] the court defined mutual mistake as “when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” What’s the burden of proof and who won – the buyer or the seller – in the motion to enforce the settlement agreement? You’ll have to read this informative opinion to find out [it’s a short one].

Have a good weekend!

To email me, click Perry S. Itkin.
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Once A Mediator, Always A Mediator!

Facts: The mediator repeated information which he learned in one mediation [while serving as the mediator] in a second mediation in which he was acting in the role of attorney.

Is this permissible? Nope! Are you sure? Yup! What’s the problem? You’ll have to read one of the new Mediator Ethics Advisory Committee Opinions [2004-011] to find out.

Should the mediator who is now acting as an attorney withdraw as attorney? Hmmm?!?

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.620, Integrity and Impartiality, provides:

A mediator shall not accept any engagement, provide any service, or perform any act that would compromise the mediator's integrity or impartiality.

What do you think? Withdraw – yes or no?

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Even Mediation Firms Must Be Impartial!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.330 Impartiality, provides in part:

(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.

Well, does the same rule apply to mediation firms as opposed to individuals? It certainly should as was the lesson learned by JAMS, one of this country’s largest providers of ADR services, according to this article in The Recorder.

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“Might As Well Go to Court – We Have Nothing to Lose!”

Famous last words! In trial, anything can happen and actually did as reported in this story in Forbes which illustrates another litigant maxim, “Oops, I should have settled”.

While $20 million seems like a lot of money to settle a case [well, it is], it’s much less than the $604 million dollar verdict [with punitive damages as the next phase]. The judge in the case of Coleman Parent Holdings Inc. v. Morgan Stanley & Co., 03-5045, 15th Judicial Circuit, Palm Beach County, Florida [Ron Perelman is the Plaintiff’s controlling shareholder] asked the lawyers if they thought additional mediation [the first round ended in impasse] might be helpful according to this story in Bloomberg. Guess what - they’re talking! [I know, you’re shocked.]

This case is a good example of post-judgment mediation, or better said, mid-judgment mediation [I just made that up]!

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The Resolution Report – Now Online!

I’m back after a wonderfully successful 40 hour Circuit Civil Mediation Certification Training!

While I was training, the first ever edition of the Dispute Resolution Center’s Resolution Report was posted online. Don’t forget to read my Case and Comment article – I think you’ll enjoy it [it’s informative, too]!

Also, there are only a few spaces available in our June 3rd CME Program, Advancing the Profession. If you’re interested, please register now.

To email me, click Perry S. Itkin.

Authority – Frequently An Issue!

According to this article in The Washington Post, authority at mediation [or the lack of it] became an issue in the multi-billion dollar suit between Ronald Perelman and Morgan Stanley. So, no matter how large or small the dispute, authority is frequently an issue!

I won’t be blogging again until next Monday, May 16th. I’m presenting my 40 hour Circuit Civil Mediation Certification Training program starting on Wednesday and setting up tomorrow.

Also, don’t forget that my next CME program is Friday, June 3rd and you can get registration information on my website, Mediation Training Center.

All to say, have a good week!

To email me, click Perry S. Itkin.

Could This Happen Here?

A North Carolina judge refused to issue a preliminary injunction to prevent governmental officials from participating in “closed door” mediation sessions, according to this article from The Asheville Citizen-Times. In Florida we have a statute, F.S. 286.011, addressing mediation and governmental entities. So, could this happen here?

By the way, there was no blogging yesterday - I was mediating from early morning to late into the evening.

To email me, click Perry S. Itkin.

“Juggling Cultures to Prevent Civil War”

According to this article in the Washington Post, this military liaison’s duty is to mediate among the various ethnic factions seeking control of Kirkuk and to prevent a civil war. And you thought you had a tough day today!

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“What Were You Thinking?!?”

Have you ever wondered [or just thought about] whether, as a Mediator, you would be subpoenaed to testify, not about what was said during a mediation conference, but rather what you were thinking about on a particular point or points, i.e. to probe your thought process? After all, we do think during a mediation, right? For example, Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.310, Self-Determination, provides in part:

(d) Postponement or Cancellation. If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.

Who has the responsibility to think about whether the mediation should be cancelled or postponed? We do [but you knew that]!

Some “thoughtful” guidance can be found in the Fifth District Court of Appeal case of Department of Highway Safety, etc., et al. v. Marks, 30 Fla. L. Weekly D 780 [Fla. 5^th DCA 2005]. It’s an interesting analysis and is relevant to what we do.

To email me, click Perry S. Itkin.

If You Could Change Your Name, Would it be “Mediator”?

The Pope did that!! According to this article in Forbes, Cardinal Joseph Ratzinger’s [now Pope Benedict XVI] selection of the name Benedict suggests that he wants to be a mediator, communicator, and an advocate of peace.

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Judge v. Attorney Equals Mediation.

According to this article in the Orlando Sentinel the judge sentenced the attorney to 10 days in jail for repeated disrespect and unprofessional behavior. After spending 2 days in jail, the attorney was released pending the appeal in Mote v. State, Case No. 5D04-3801 [Fla. 5th DCA 2005]. In an unusual sua sponte appellate court order [you’ll have to enter the case number and hit the “submit” button; it’s docketed on 4/21/05], the Fifth District Court of Appeal directed the judge and the lawyer to mediate their differences. This is a very interesting application of mediation!

Have a nice weekend!

To email me, click Perry S. Itkin.

“It’s Between Me and You . . . .”

The mediation lesson to be learned from Sunshine Properties, L.L.C. v. Dept. of Transportation, 2005 Fla. App. LEXIS 5981 [Fla. 4th DCA 2005] is that if one party intends to reach a settlement agreement with all parties in the litigation, then all parties should attend the mediation conference and agree on the settlement. In this case the settling party did not represent the interests of the remaining defendants and could not settle their claims for them.

To email me, click Perry S. Itkin.

“I’m Not a Criminal; I’m a Mediator – What’s Reasonable Doubt Got to do with Me?”

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.330, Impartiality, provides [in part]:

(b) Withdrawal for Partiality. A mediator shall withdraw from mediation if the mediator is no longer impartial.

Did you ever wonder how you objectively can tell if you are “no longer impartial”? Just in case you did, you might want to read Bell, et al. v. Greissman, et al., 2005 Fla. App. LEXIS 5436 [Fla. 4th DCA 2005], in which the Fourth District Court of Appeal applies the reasonable doubt standard in resolving questions involving jurors’ ability to be fair and impartial. Do you think this standard would [should] apply to mediators too?

To email me, click Perry S. Itkin.

“Where Can I Get a Job as a Mediator?”

The 15th Judicial Circuit [West Palm Beach] and the 7th Judicial Circuit [St. Augustine] are looking for Certified Circuit/Family Mediators according to these Florida State Courts System’s Job Opportunities postings. Are you interested? Better hurry, though, since the 15th Judicial Circuit application period ends April 28th and the application period for the 7th Judicial Circuit ends April 27th! However, here’s another one from the 15th Judicial Circuit for a part-time position and the application period remains open until the position is filled. Good luck!

To email me, click Perry S. Itkin.

“I’ll Take the 5th – Or Not!”

In Holler v. De Hoyos, 2005 Fla. App. LEXIS 5566 [Fla. 5th DCA 2005], the parties and counsel were ordered to attend appellate mediation. Sanctions for failure to comply with appellate mediation program procedures without good cause would be imposed. De Hoyos did not attend; her lawyer, the opposing counsel and party did. An agreement was negotiated in her absence [how could that be?] and De Hoyos later refused to sign it – imagine that!! She was sanctioned – why? You’ll have to read the opinion [it’s short] to find out!

To email me, click Perry S. Itkin.

“I’m a Certified Mediator in Florida – Is That Useful in 49 Other States?”

The answer is a definite maybe! Okay, you now live in Florida and someone, while you’re in Florida, asks you where you’re from, you reply “New York, Tennessee, California, etc., etc., etc.” [unless you were born here then you’re from Florida, right?]; now, let’s say you live in Florida and are on vacation in Oregon and someone asks you where you’re from, you reply “Florida” – why is that? Does anyone care? Probably not but it’s a nice introduction to the next paragraph!

Anyway, now that you’re a Mediator certified by the Supreme Court of Florida, is this certification transportable to any other state? Maybe! Here’s a link to a study from the University of Arkansas at Little Rock that was done in 2002 which may answer the question. Although it was done a few years ago, there are links to each of the relevant web locations in the states listed. So, if you’re thinking of moving from Florida and want to mediate in your new “Home State”, then . . . .

To email me, click Perry S. Itkin.

Mediating in the Sunshine – Hey, We’re in Florida!

The judge decided that Florida’s “Sunshine Law”, F.S. 286.011, was violated and ordered the citizen plaintiffs and the defending Florida Environmental and Resource Regulatory Group to mediate their differences, according to this article in The Citrus County Chronicle – another example of self-determination in action.

To email me, click Perry S. Itkin.

Mediation on The Big Screen.

Well, not exactly; but, according to this article in The London Line, London’s Alternative Newspaper, mediation does play a role in The Interpreter, a political thriller where mediation is questioned as a suitable alternative to intervention [that’s not the whole plot line just a part].

Hmm, Nicole Kidman interpreter and mediator?

To email me, click Perry S. Itkin.

“When is a Duck not a Duck?”

You know the saying, “If it looks, walks and quacks like a duck, it’s a duck” [or something like that]. But what if it’s not? To put it another way, when is “mediation” actually “arbitration”? It seems the answer is that it’s the process not the label that controls, as it was in the Second District Court of Appeal franchise dispute case, Maschino v. Val-Pak Direct Marketing Systems, Inc., 2005 Fla. App. LEXIS 4700 [Fla. 2nd DCA 2005]. Although the dispute resolution process required the parties to ‘mediate’ a dispute, it [“quack, quack, quack”] really was arbitration!

To email me, click Perry S. Itkin.

A Mediator’s Demeanor, Part 2 – Is It Important?

Of course it is! [But you knew that, right? Especially after reading A Mediator's Demeanor, Part 1.] Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.350, Demeanor, provides “A mediator shall be patient, dignified, and courteous during the mediation process.” Why on earth do we need a rule to tell us that?!?

We can learn from this example of a judge’s hostility and a lawyer’s baiting, belittling, provoking and showing disrespect to the court as reported in this story in the New York Law Journal about People v. Straniero, 2005 NY Slip Op 02770 [2005]. We are professionals, right?!? By the way, if you were the mediator in a case where one of the lawyers exhibited conduct like that demonstrated in this case, how would you address it?

To email me, click Perry S. Itkin.

Conflict? – Well, You Be the Judge!

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.340, Conflicts of Interest, provides [in part]:

(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.

and

(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.

What if a mediator, like the judge in this article from the New York Law Journal, has a “significant social and professional relationship with a party, who also happens to be an attorney, and a disclosure is made with no objection? Should the mediator continue to serve? Maybe it’s a good idea to read the article for more details before answering! Now, what do you think?

To email me, click Perry S. Itkin.

Co-Co-Co Med-Arb – Whaaat?!?

No, I’m not stuttering. The Florida Rules of Civil Procedure actually provide for mediation to be used in conjunction with arbitration [Fla. R. Civ. P. 1.710(b)] and for arbitration to be used in conjunction with mediation [Fla. R. Civ. P. 1.800]. According to this article in the Bowling Green Daily News a church leadership dispute will be resolved, not by the court, but by a three person mediation team followed by, if necessary, binding arbitration. The mediation location is rather interesting as is this blend of processes. A clever idea, BUT. . . do you think the same three mediators should serve as the panel of arbitrators?

To email me, click Perry S. Itkin.

“What’s The Meaning of . . . ?”

Here’s something clever for you to take a look at – an on-line Mediation Dictionary! It’s presented compliments of The Mediation Agency with offices in the United Kingdom [Northern Ireland, actually] and the United States [Arizona].

To email me, click Perry S. Itkin.

Johnnie Cochran – Mediator!

Johnnie Cochran, an incredibly instinctive trial lawyer, was also a mediator according to this interesting story in The Selma Times-Journal.

To email me, click Perry S. Itkin.

Is This You?

There’s a personality type called ‘The Mediator’ according to this article in the Plainview Daily Herald. Is this you?

To email me, click Perry S. Itkin.

“I Am What I Am!”

Florida’s Rules for Certified and Court-Appointed Mediators provides that the mediator shall 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. . . .” Rule 10.420(b)(3), Conduct of Mediation, Adjournment or Termination.

Sometimes this can be a problem, especially if a party is pro se, as indicated in this article in the Boston Herald where a pro se defendant appealed the competence of his attorney – think about that for a minute!

To email me, click Perry S. Itkin.

P.S. There was no posting April 7th due to the ubiquitous “technical difficulties” experienced yesterday with Blogger.

“The Perfect Mediation” – A Video!

You’re going to enjoy this 4 minute video of the “perfect mediation” – notice the skillful techniques employed by the mediator. Be patient, though, the video takes a little while to load [especially if you use dial-up] – it’s worth the wait and it's fun!!! By the way, the video and others are available for purchase at www.mediate.com.

To email me, click Perry S. Itkin.

NASD Dispute Resolution Now in All 50 States + Online + “Over There” [Well, England Anyway]!

The Dispute Resolution Division of the NASD, according to this press release, now has mediation [and arbitration] hearing locations in all 50 states, plus Puerto Rico and London – 68 hearing locations in total. The Securities and Exchange Commission has approved, effective no later than June 5, 2005, a rule change to allow arbitrations abroad [i.e. in London] – this costs more, of course.

If you are interested in becoming a mediator for the NASD, this link will be of value for you.

To email me, click Perry S. Itkin.

Pope John Paul II [1920 – 2005] – A Mediator.

According to this article in MercoPress News, Pope John Paul II played a leading role as mediator in preventing an armed conflict between Argentina and Chile shortly after he became Pope in 1978. He successfully implemented papal mediation which led to the creation of a lasting peace.

May he rest in peace.

To email me, click Perry S. Itkin.

Have You Ever Experienced the “Stalingrad Defense” in Mediation?

Sure you have! You know, the party who challenges every single point to the very end [or to put it in another context, ‘we’ll all go down in flames if need be’] – that’s like the “Stalingrad Defense”. To get a better understanding of the concept, take a look at this article in The Connecticut Law Tribune about the divorce litigation that lasted longer than the marriage. What personal characteristic or characteristics would a good mediator need to have when faced with the “Stalingrad Defense”?

By the way, don't forget to turn your clocks ahead one hour Saturday evening at 2:00a.m. [or at some time that's more convenient for you]. If you happen to be mediating at that time, does that mean you get to bill for the extra hour? Have a good weekend!

To email me, click Perry S. Itkin.

A $300,000 “Success Bonus” for a 5 Day Mediation – A Whaaat!?!?!?

Wait a minute – we know that mediators cannot charge a contingency fee. Florida Rules for Certified and Court-Appointed Mediators, Rule 10.380(f) in unmistakable English states:

Contingency Fees Prohibited. A mediator shall not charge a contingent fee or base a fee on the outcome of the process.

So, what’s this “success bonus” all about? For starters, that wasn’t the type of fee claimed by the mediator [I know, you’re relieved]. According to this article in the Connecticut Law Tribune, a client sued his lawyer [that’s right, the lawyer claimed entitlement to the “success bonus”] in Federal court to recover fees paid to the lawyer arising from the client’s five-day “pressure cooker” divorce mediation.

Read the article, envision you were the mediator and observed the mediation conduct as was reported, and then think about what you would, or would not, do? Also, give some thought to the confidentiality of mediation communications and the application of Florida's “Mediation Confidentiality and Privilege Act”, F.S. 44.401-44.406. Would any exceptions apply in this case?

To email me, click Perry S. Itkin.

Does Go Sit in the Corner Equal Caucus?

According to this article in the South Florida Sun Sentinel a Miami-Dade County judge made 2 defense lawyers sit in a corner of the courtroom and write letters of apology to the lead prosecutor for allegations of misconduct they made against the prosecutor. The first effort at apologizing was characterized by the judge as “non-apologies” and she made the lawyers do it over again.

What can mediators learn about the power of the apology, its application in mediation and its implementation [among other things – a public or private apology]?

To email me, click Perry S. Itkin.

Mediating Between the 3 Little Pigs & the Big Bad Wolf!

No, I have not lost my mind! Here’s a cute animation for you to play for your young children, grandchildren and great-grandchildren [you might even secretly enjoy it yourself]. It’s a nice way to introduce mediation to them, to help explain what you do as a mediator, and to show them how they can resolve disputes of their own. Very clever of the Veteran’s Administration [imagine that]!

To email me, click Perry S. Itkin.

Small Claims Mediation Scores Big!

According to this article in The News-Press: Bonita Springs, parents from 2 rival roller hockey leagues went to court over a score board held hostage and their dispute was resolved in [you guessed it!] Small Claims Mediation.

To email me, click Perry S. Itkin.

Mediators and Practice Development – Marketing!

Here’s something new for you. It’s called ADR411 offered as a monthly subscription. It is the first Practice Development website which offers ADR professionals what they would need to link together the different aspects of their mediation and arbitration practices. The site, updated continuously, provides members access to an array of tools which can help them develop and market their practice. Take a look; I think you'll find it interesting!

To email me, click Perry S. Itkin.

Parenting Coordination - An Update.

The Florida Supreme Court Parenting Coordination Workgroup submitted to Florida Supreme Court Chief Justice Pariente a proposed Model Parenting Coordination Administrative Order, including a model order of referral, and a guide for parenting coordination training.

This workgroup was appointed by Chief Justice Pariente to “develop a model administrative order and appropriate strategy regarding parenting coordinators” and “address the various legal and due process concerns associated with the use of parenting coordinators and propose recommendations ... to protect parents’ rights and the best interests of children.” The Workgroup also reviewed the concerns expressed by Governor Bush when he vetoed the Parenting Coordination Bill which was adopted in the 2004 Legislative Session [SB 2640] and reviewed the Senate Interim report on Parenting Coordination and Domestic Violence.

One of the requirements to become a parenting coordinator is to complete the 40 hour Family Mediation Certification Training program.

To email me, click Perry S. Itkin.

“I’m a Lawyer but I’d Rather be a . . . .”

A career change survey for lawyers: “I would rather be a . . . .”
a) race car driver
b) politician
c) researcher
d) ____________. [Take a wild guess!]

Your answer, please!

The answer is found in this survey by Robert Half Legal, a legal staffing company.

To email me, click Perry S. Itkin.

“I Changed My Mind!”

This actually could be a good thing. Take a look at Judge Gross’s concurring opinion in Burke v. Snyder, et al., 30 Fla. L. Weekly D 586 [Fla. 4th DCA 2005] for powerful comments on the wisdom of changing one’s mind. His remarks are on page 5 of the opinion – that’s all you really need to read on this point.

To email me, click Perry S. Itkin

An Editorial Note - Excuse the Absence!

No postings were possible on Thursday, March 17 and Friday, March 18, 2005, since Blogger, which hosts Florida Mediator, was “down” [with the flu?!?]. Please excuse the absence.

To email me, click Perry S. Itkin

Mediation and the State Attorney!

According to this article in The Jacksonville Times-Union, the State Attorney's Office there has a Consumer Mediation Program where a consumer with a business dispute mediates with the business and a mediator appointed by the State Attorney's Office. Any concerns here?

To email me, click Perry S. Itkin

A Criminal Mediation Docket – What’s That All About?

The Kentucky Post reports in this article on a criminal court Judge’s unique way to cut down his criminal docket. Is this really mediation or is it something else? What do you think?

To email me, click Perry S. Itkin.

Mediating with Hurricanes – How’s It Going?

In an earlier post, November 26, 2004, I covered the mediation program established by Florida’s Department of Financial Services to resolve disputes between insurers and policyholders as a result of the damage wrought by last season’s hurricanes. Mediation is getting results according to this article in The News-Press and this one in the Sun Herald.

To email me, click Perry S. Itkin.

“Hide ‘n Seek” Mediation with Florida’s Public Records!

Did you know that we have mediation in disputes involving citizens who are denied access to public records, are asked why they want to see them, are required to put their requests in writing, or meet other unlawful requirements? Well, we do and it’s a mediation program within the Office of the Attorney General! Take a look at Florida Statute 16.60 as well as this article in the South Florida Sun-Sentinel.

To email me, click Perry S. Itkin.

Another Time Out!

A quick note to let you know that I won't be posting Thursday or Friday since I'll be in Tallahassee attending the Supreme Court's ADR Rules and Policy Committee meetings. See you again on Monday!

To email me, click Perry S. Itkin

“You’re a Lawyer from Where?” – MJP

Positions for and against The Florida Bar proposed rule changes addressing lawyers practicing across state boundaries were argued last month to the Florida Supreme Court. The Florida Bar proposed allowing out-of-state lawyers to come into Florida to handle transactions, arbitrations, mediations and other dispute resolution matters as long as there is a “nexus” – a client who resides in or has a business where the lawyer is admitted or if it relates to an area of the lawyer’s practice. To read more about the debate, read this article in the current issue of The Florida Bar News.

To email me, click Perry S. Itkin

“You Want Me to Agree to What?!? – Not to Sue Your Client Again!”

Rule 4-5.6(b) of the Rules of Professional Conduct for lawyers prohibits clauses in settlement agreements that restrict the lawyer’s right to practice.

“A lawyer shall not participate in offering or making:(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties.”

The Professional Ethics Committee of The Florida Bar has published Proposed Advisory Opinion 04-02 [revised] which highlights a particular provision in a settlement agreement which violates this rule. The settlement provision also contains interesting language requiring the settlement to be confidential.

To email me, click Perry S. Itkin

Failure to Notify Appellate Court of Settlement & Sanctions – A Case of 1st Impression!

Florida Rule of Appellate Procedure 9.350(a) provides:

Dismissal of Causes When Settled. When any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.

In Merkle v. Guardianship of Jacoby, 2005 Fla. App. LEXIS 2232 (Fla. 2nd DCA 2005) the Second District Court of Appeal, in a case of first impression, sanctioned counsel for failing to immediately notify the court of the settlement of a pending case before the court’s decision on the merits which occurred more than a year prior to the decision.

Among counsel’s reasons for not complying with the rule were that the settlement was conditioned on a collateral agreement [so what!], that he was continuing with the appeal to gain a perceived advantage in other unrelated matters [this is really bad!], and that he was inexperienced in appellate matters [this helped a little].

Among the consequences of the above failure to comply the the rule is the Second District Court of Appeal's order in the same case denying a Motion to Vacate its prior ruling based on the legal principle that the “cat is out of the bag”.

To email me, click Perry S. Itkin

Time Out!

Today I start my 5 day, 40 hour Family Mediation Certification training which concludes on Sunday, March 6th. Training and blogging - tough to do! I'll be posting again on Monday, March 7th. See you then!

Take care,
Perry

To email me, click Perry S. Itkin

A Mediator Declines to Mediate – Why?

Mediator Ethics Advisory Committee Opinion 2004-006 answers the question posed above.

In summary, when a mediator receives a court order in advance of a mediation, which contains provisions which are contrary to the mediator’s role and requires the mediator to act in a manner that is inconsistent with the mediator’s ethical rules, the mediator should decline participation in the mediation.

This is related to a court ordered mediation and good faith. It’s an important opinion to read.

Also, one segment of my “Advancing the Profession” CME program will address “good faith” participation in mediation.

To email me, click Perry S. Itkin

Breach of Confidentiality and Trust is Broken.

Florida Statute 44.401 - 44.406, the Mediation Confidentiality and Privilege Act, provides civil remedies if a mediation participant discloses a mediation communication. This is the first statute of its kind nationally. What if Minnesota had a similar statute and what would be its application in the situation presented in this article in the Brainerd Dispatch? School district officials reportedly disclosed confidential mediation communications made during a mediation between the school district and the teachers’ union.

To email me, click Perry S. Itkin

Can Evolution be Mediated?

One of the learning objectives of Florida’s mediation certification training programs is for participants to differentiate between issues which are appropriate for mediation and those that are not appropriate.

According to this article in the Macon Telegraph, a Cobb County, Georgia school district, in litigation for placing evolution disclaimers in biology texts, is expected to begin mediation on March 1st with the parents who have sued the district. The School District voted to take an appeal from the judge’s order [44 pages] in Selman v. Cobb County School District, 2005 U.S. Dist. LEXIS 432 [N.D. GA 2005]. The mediator is from the 11th Circuit Court of Appeals’ mediation office.

Do you think this issue is appropriate for mediation?

To email me, click Perry S. Itkin

“End Run” Around Nonparticipating Persons [Medicare] Disapproved

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.320 Nonparticipating Persons provides:

A mediator shall promote awareness by the parties of the interest of persons affected by actual or potential agreements who are not represented at mediation.

The Committee Notes to this Rule give as examples lienholders and governmental entities.

The Third District Court of Appeal in Pollo Operations, Inc. v. Tripp, 2005 Fla. App. LEXIS 2065 [Fla. 3rd DCA 2005] disapproved of the trial court’s granting Plaintiff’s request for an end-run around the mediated settlement agreement and Medicare statute instead of enforcing the agreement as written and “customarily implemented”.

Nice try! Or is it? The dissent makes good points also.

To email me, click Perry S. Itkin

“Here’s Why I Didn’t Answer the Mediation Questionnaire – Don’t Sanction Me!”

An attorney’s response to an order to show cause, issued by Fifth District Court of Appeal, as to why the appellate mediation questionnaire, forwarded by the court to the attorney, was filed over 2 months late included:

1. I relocated my office and . . . .
2. I was negotiating to form a new law firm and . . . .
3. Staff transitions and . . . .
4. Three hurricanes were heading my way and . . . .
5. My client had to return to Poland for treatment and . . . .

Did any or all of these rise to the level of excusable neglect? Read Matajek v. Skowronska, 2005 Fla. App. LEXIS 1667 [Fla. 5th DCA 2005] to find out.

Speaking of excusable neglect, don’t miss your CME requirements! Register for one of the Advancing the Profession programs.

To email me, click Perry S. Itkin

Here’s a Marketing Website for You. . . .

In my internet travels I came across this website created by Trey Ryder. He’s a marketing consultant who specializes in Education-Based Marketing for lawyers. Although designed for lawyers, there is a cornucopia of value for mediators as well. I thought you might enjoy a change of pace! Take a look.

By the way, don’t forget to visit my Mediation Training Center website for information about my training programs and continuing education seminars. [See, already employing ideas from that marketing website!]

To email me, click Perry S. Itkin

Impartiality is in the Eye of the Beholder!

In an earlier posts we addressed the issue of impartiality and the mediator’s demeanor. The Third District Court of Appeal in Valdes-Fauli v. Valdes-Fauli, 3D04-2079 (Fla. 3rd DCA 2005) points out that:

“While . . . trial judges [substitute mediators] . . . frequently make statements to encourage the parties to settle, it is not our perspective that controls, but rather whether the facts alleged would place a reasonably prudent litigant [substitute “mediant” – I made that word up!] in fear of not receiving a fair and impartial trial [substitute mediation]. [W]hat feeling resides in the petitioner’s [substitute “mediant’s”] mind and the basis for such feeling.

The question . . . focuses on those matters from which a litigant [substitute “mediant”] may reasonably question a judge’s [substitute mediator’s] impartiality rather than the court’s [substitute mediator’s] own perception of its ability to act fairly and impartially.”

We, as mediators, can learn from these creative, yet essential, substitutions!

To email me, click Perry S. Itkin

Mediating Class Actions in 2005 and Forward – It’s Not the Same Now!

In his own words, President Bush seeks to “end the lawsuit culture in our country” by signing the Class Action Fairness Act of 2005 today. What’s the impact on mediation? Well, for one thing it sets the venue of class action suits seeking $5 million or more in state court only if the primary defendant and more than 1/3 of the plaintiffs are from the same state. However, if less that 1/3 of the plaintiffs are from the same state as the primary defendant, and more than $5 million is the amount in controversy, the case will be heard in Federal court.

Next, the Act limits attorneys’ fees in settlements where plaintiffs get discounts or coupons on products instead of a financial settlement. The attorneys’ fees are linked to the coupon’s redemption rate or the actual hours spent working on a particular case.

There’s more!

After you read this Act, do you think it will have other effects on mediation?

To email me, click Perry S. Itkin

Med-Arb Hybrid Process Useful in a Multi-Party Case

Florida Rules of Civil Procedure Rule 1.710(b), Exclusions From Mediation, provides [in part]:

A civil action shall be ordered to mediation or mediation in conjunction with arbitration upon stipulation of the parties. A civil action may be ordered to mediation or mediation in conjunction with arbitration upon motion of any party or by the court, if the judge determines the action to be of such a nature that mediation could be of benefit to the litigants or the court.

According to this article in The Buffalo News, a hybrid Med-Arb process was a useful technique resulting in a $4 million dollar total mediation settlement between a severely burned plaintiff and Burger King and 2 other corporations, with apportionment among the defendants being determined by arbitration which is to follow mediation.

Good process thinking here!

To email me, click Perry S. Itkin

“Side Bet” in Settlement Agreement Renders Appeal Moot!

You’re gonna’ love this one! In an en banc opinion the Ninth U.S. Circuit Court of Appeals [only in California!], in Gator.com, Inc. v. L. L. Bean, 2005 U.S. App. LEXIS 2521 [9th Cir. 2005] held that the appeal was rendered moot notwithstanding a “side bet” in a confidential settlement agreement and that the “side bet” was not enough to preserve a justiciable controversy. Also, even though the parties agreed that the agreement was confidential and to be filed under seal, the appellate court instructed the parties to submit a copy of sealing order and when the appellate court reviewed the submission it determined no sealing order was actually entered. The court concluded that since the issue of mootness hinged on the specifics of the “confidential” agreement, it was appropriate to disclose the agreement’s content.

Nice try, folks – remember, no more side bets – that won’t confer jurisdiction!

Remember, too, you can obtain a registration form for the CME Seminar “Advancing the Profession” on my website at this CME direct link.

To email me, click Perry S. Itkin

Ethics Are Important – Sanctions and Re-training!

Florida Rules for Certified and Court-Appointed Mediators provide for Sanctions:

Rule 10.820(m) Sanctions:

If, after the hearing, a majority of the panel finds that there is clear and convincing evidence to support a violation of the rules, the panel shall impose such sanctions included in rule 10.830 as it deems appropriate and report such action to the center.

Rule 10.830 Sanctions

(a) Generally. The panel may impose one or more of the following sanctions:

(4) Additional training, which may include the observation of mediations.

Mediators are not the only professionals subject to sanctions [but you knew that!]. Read this article in the National Law Journal to learn what one Federal Court judge in California did in ordering an entire law firm of 80 lawyers to return to school for a refresher course on ethics! Just in case you're curious, you can read the entire 83 page opinion in Moser v. Bret Harte Union School District, 2005 U.S. Dist. LEXIS 1057 [USDC E.D. CA 2005] here.

Simply amazing!

Don’t forget to register for my CME program, “Advancing the Profession” – it contains 5 hours of ethics!

To email me, click Perry S. Itkin

Resolution Report, January, 2005 – Now Online!

The latest Dispute Resolution Center issue of the Resolution Report [January, 2005] is now online. It contains information about the ADR Rules and Policy Committee’s Report and Recommendations [to the Florida Supreme Court] on Senior Judges as Mediators [first reported on here last month], new MEAC Opinions, and an excellent Case and Comment article [humbly, I wrote it!].

Also, I’m proud to announce a new, extraordinary all day Continuing Mediator Education Seminar “Advancing the Profession”, which I’m presenting on March 18, June 3, September 30 and December 9, 2005. Please join us at this essential program!

To email me, click Perry S. Itkin

Pilot RV Mediation and Arbitration Program Proposed to be Permanent

On February 9, 2005, SB 1312 was filed in the Florida Senate for consideration in the 2005 session of the Legislature. It eliminates termination of the mediation and arbitration pilot program for disputes involving the manufacturer of recreational vehicles acquired on or after October 1, 1997. It amends F.S. 681.1096 and 681.1097.

To email me, click Perry S. Itkin

Revisions Proposed to AAA, ABA, ACR Model Standards of Conduct

The Model Standards of Conduct for Mediators were prepared from 1992 through 1994 by a joint committee composed of two delegates each from the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution (now the Association for Conflict Resolution).

On December 29, 2004, the Joint Committee reached consensus on a revision of the Model Standards of Conduct for Mediators and forwarded it for consideration to the leadership boards of the AAA, ABA Section of Dispute Resolution and ACR.

To email me, click Perry S. Itkin

Amendments to the Florida Rules of Juvenile Procedure Impact Dependency Mediation

The Florida Supreme Court, effective January 27, 2005, approved Amendments to the Florida Rules of Juvenile Procedure, 2005 Fla. LEXIS 92 [Fla. 2005] including Dependency Mediation, Rule 8.290 [pages 59-63]. The Dependency Mediation amendment now requires dependency mediation to comply with statutory timelines and deletes language in the prior rule which permitted a waiver of time requirements by all parties with court approval. - no wiggle room!

To email me, click Perry S. Itkin

94 Hours a Day – That’s a Long Day!

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.380 Fees and Expenses, provides that “A mediator holds a position of trust. Fees charged for mediation services shall be reasonable and consistent with the nature of the case.”

General guiding principles in determining fees in Rule 10.380(b)(1) include that “any charges for mediation services based on time shall not exceed actual time spent or allocated.”

Take a look at this article from law.com which describes what happened to a solo practitioner [a lawyer] who billed the U.S. Navy for up to 94 hours for one day’s work – he must have been a very fast worker!

To email me, click Perry S. Itkin

The Melody Lingers On – GM & Fiat Mediate and More!

I've been training since Wednesday - that's why I haven't posted toward the end of last week. Now, I'm back!

General Motors Corporation and Fiat engaged in mediation to settle a dispute over whether Fiat can sell its money losing car division to GM. In 2000 the two entities incorporated the following mediation clause into Section 10.08 of their Master Agreement:

In the event of a dispute arising out of or in connection with this Agreement, prior to the exercise of any other remedies hereunder or at law, the party hereto seeking a remedy against the other party shall request that the dispute be submitted to the chief executive officers of the two parties by notice to such effect to the other party. The chief executive officers of both parties shall meet within 20 business days of such notice in a neutral setting in person to attempt in good faith to resolve such matter. In the event that they have been unable to resolve such matter within 10 business days after their meeting, either party may seek the legal remedies entitled to them hereunder or at law.

Although the mediation did not result in an agreement between the two, it certainly set the stage for the continuing negotiations without a dash to the courthouse according to this article in just-auto.com. This is a good example why mediators should encourage the parties, even after impasse, to continue to negotiate and leave them with a positive note at the end of mediation.

To email me, click Perry S. Itkin

“It’s Mediating Cats and Dogs!”

The Glenwood Springs [Colorado] City Council is exploring mediation in an effort to resolve pet related disputes among neighbors according to this article in the Glenwood Springs Post Independent. Do you see any parallels to mediating in Community Justice Centers [if we have any left in Florida]?

To email me, click Perry S. Itkin

Mediation and Prime Time TV – Joey!

This is different. Here’s a look at portions of this script from the January 20, 2005 episode of Joey and the brief [and sometimes too real] attempt to mediate. Enjoy!

To email me, click Perry S. Itkin