Mediating With Mother Nature

Well, not exactly. How about mediating the tsunami? Ok, ok – how about training to mediate tsunami related disputes. According to this article in the Daily News [not the one from New York], the Legal Aid Commission of Sri Lanka in collaboration with the Alternative Disputes Resolution Institute commenced a Mediator Trainer Training Program. The model is based on Christopher Moore’s model. Moore wrote The Mediation Process: Practical Strategies for Resolving Conflict.

The article is interesting not only from the practical perspective but also as a look into how another country views mediation. By the way, did you know that Sri Lanka is the second most litigious society in the world?

To email me, click Perry S. Itkin.

Success In Mediation Is Not Just About Settlement!

This is not heresy. It’s actually enlightened thinking by an appellate court in England according to this article in The Lawyer. Take a look – it’s interesting! Are judges here on par with this line of thought?

There’s another aspect to this also as set forth in Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.200, Scope and Purpose which states in part:

Whether the parties involved in a mediation choose to resolve their dispute is secondary in importance to whether the mediator conducts the mediation in accordance with these ethical standards.

See, we’re not alone in our thinking – the English court takes another step forward!

To email me, click Perry S. Itkin.

When Is An Agreement Not An Agreement?

In Dorsett v. Dorsett, 902 So. 2d 947 [Fla. 4th DCA 2005] the parties attended court-ordered mediation. The Mediation Conference Report stated that the parties were still negotiating and may return to mediation [they didn’t]. Months later the former husband filed a Motion to Enforce Settlement Agreement, claiming that at the office of the Wife's attorney, the parties and their attorneys settled, resolved and agreed upon all issues in the case and the former Wife won’t abide by it. The former Husband admitted there was no signed agreement and claimed there was an oral agreement which the trial judge adopted. Some of the terms of this adopted oral “agreement” related to the parties’ minor child. The Fourth District Court of Appeal held that “a trial court’s responsibility to the child cannot be abdicated to any parent, any expert” and that “a court is not bound by any agreement between the parents”.

So, although the parties may create a mediation agreement on some or all parenting issues, the court must still approve it – the parties should be aware of this, don’t you think?

To email me, click Perry S. Itkin.

“What’s the Meaning of . . . ?”

One of principles in the communication module of mediation training is learning to avoid jargon. That’s also a good idea in practice. This article in the New York Law Journal is an excellent example why. A trial judge in New York threw out [how’s that for “jargon-less” writing] a jury verdict after it was disclosed that the jury consulted a dictionary to determine the meaning of “preponderance”. Imagine that!

To email me, click Perry S. Itkin.

Hillary Clinton – Mediator!

According to this editorial in Newsday, Hillary Clinton is characterized as a mediator between the Democratic Party’s “left” and the Democratic Leadership Council. Hmm!! As mediators, we’re trained to probe for, uncover and discuss a party’s hidden agenda. How about some mediator introspection, though? Does a mediator have a hidden agenda? How about Hillary [maybe it’s not so hidden]?!? Good luck, Senator Clinton!

To email me, click Perry S. Itkin.

A Postscript to Yesterday’s Post

By the way, Florida’s Rules of Civil Procedure, Rule 1.730(b) [Completion of Mediation; Agreement] and Florida’s Family Law Rules of Procedure, Rule 12.740(f)(1) [Family Mediation; Report on Agreement] provide that the agreement reached in mediation is required to be signed by the parties and their counsel, if any.

The Rules of Civil Procedure identify 3 ways to memorialize an agreement:

• Reduce it to writing
• Electronically recorded [transcript filed with the court]
• Stenographically recorded [transcript filed with the court]

The Florida Family Law Rules of Procedure likewise identify 3 ways to memorialize an agreement:

• Reduce it to writing
• Electronically recorded [made under oath or affirmed; transcript filed with the court]
• Stenographically recorded [made under oath or affirmed; transcript filed with the court]

So, how is it possible that mediation notes, even coupled with testimony, could conceivably rise to the level of an enforceable mediation agreement? Do the Rules mean what they say – or not? Maybe my mantra, Nothing is as it seems nor is it otherwise, actually is a truism. The requirements of the Rules were not mentioned in the opinion. Hmmm!!

What do you think?

To email me, click Perry S. Itkin.

Warning: Mediation Notes Alone Do Not Constitute An Agreement, But . . . !

In Borck v. Borck, 2005 Fla. App. LEXIS 11049 [Fla. 4th DCA 2005] involving competing petitions for the appointment of a guardian, the trial court ordered the intended ward’s family members and other entities to produce financial information and tax returns. The order was based solely on handwritten mediation notes [it’s not clear from the opinion whose notes they were]. The order was entered without an evidentiary hearing as to the scope of the “agreement” and was based on the notes and one attorney’s representation of the “agreement”. The Fourth District Court of Appeal quashed the trial judge’s order without prejudice to the court holding an evidentiary hearing.

The subtle [well, maybe not so subtle] implication here, however, is that mediation notes coupled with appropriate testimony may rise to the level of an enforceable agreement. Any thoughts on how this might affect your note-taking?

So, what do you do with your mediator notes? Okay, what do you do with, or say about, the notes of the mediation participants, if anything? Good luck, by the way, in trying to collect the notes of the mediation participants! I am not, repeat not, suggesting you place yourself in harm’s way. By the way, there is no mention in the opinion about confidentiality [this is a hint].

To email me, click Perry S. Itkin.

Enforcing Settlement Agreement v. Attorney-Client Privilege

According to this article in the New York Law Journal, a Federal Court judge in the Southern District of New York has ruled in G-I Holdings, Inc. v. Baron & Budd, et al., 2005 U.S. Dist. LEXIS 14128 [S.D.N.Y. July 13, 2005] that a party may not pierce the attorney-client privilege to discover what advice the attorneys gave to the clients about complying with a settlement agreement which provided, “Plaintiff’s Counsel . . . agrees, unless in the exercise of its independent professional judgment it determines otherwise, to recommend that its clients seriously consider [the] alternative dispute resolution procedure [described in paragraph 7. . .]”. Is this enforceable? How?

The judge ruled that “The problem of how to enforce [the above paragraph] was foreseeable, and [the] failure to insist on contractual terms that specified an enforcement mechanism does not justify the invasion into the privilege that [the party] now seeks.”

What would you do to stimulate the parties’ thinking during mediation as to how a breach of such a provision could be managed?

Have a pleasant weekend!

To email me, click Perry S. Itkin.

“This Is An Easy Case For You To Mediate!”

I don’t know what you think when one of the parties or attorneys makes on opening comment like that. To me, it’s like the “kiss of death” – easy is in the eye of the beholder, so to speak. Anyway, when, after much laboring, the parties reach an agreement verbally, more real mediating lies ahead – preparing the written agreement. As an aside, don’t let one of the parties lull you into a false sense of security by asking, before the agreement is written, “How much do we owe you?”. The sagacious answer is, “I’ll tell you after the agreement is prepared and signed.” But, you already knew that, right?!?

Take a look at this article in the Corvallis Gazette-Times which illustrates the point. There, one side presented a short form template agreement and the other side presented a seven page settlement document. Hmmmm!!!!!
How close do you think they are?

To email me, click Perry S. Itkin.

Divorce Mediator Indicted!

I bet that got your attention! Theft + fraud + unauthorized practice of law + using mediation service to pick up dates = indictment. Wait, wait, wait, calm your curiosity down – it was not a Florida mediator! According to this article in Phoenix New Times, a disbarred Vermont attorney opened a mediation business in Arizona, titled “Divorce With Dignity” or “Divorce Associates”. His ads said he would “settle all issues – no trial – no court appearance – be divorced in 90 days – low cost – low stress – judge approved – focus on best interests of children – attorney supervised.” See any problems here? Really, the article is worth reading, as is this one for more information. This gives criminal mediation new meaning.

To email me, click Perry S. Itkin.

Pick Up the Phone!

Florida Rules of Civil Procedure, Rule 1.720(b) provides for sanctions for failure to appear at a duly noticed mediation conference.

(b) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys' fees and other costs, against the party failing to appear. [Emphasis added.]

Has this ever happened to you? One side shows up at mediation and the other doesn’t – no prior warning. Lots of folks are not happy, to say the least. However, before the appearing party rushes to file sanctions, it’s at least worth making a phone call to the non-appearing attorney as was suggested by the Fourth District Court of Appeal in Giron v. Fairways of Sunrise Homeowners’ Association, Inc., 30 Fla. L. Weekly D 1426 [Fla. 4th DCA 2005]. Although it’s not a case involving mediation, the principle of professionalism is always applicable.

A good practice for the mediator would be to call the parties a day or more prior to the scheduled mediation to confirm everyone’s attendance [and, of course, to remind the parties to bring a check] – but, you knew that!! Right?!?

To email me, click Perry S. Itkin.

“I See What You’re Saying!”

What does that phrase tell you – the responder is a visual communicator. That’s one choice what’s another? How about this – the speaker is also a visual communicator. Why? They gesture while verbalizing as depicted in this video promo from Linkage, Inc. appropriately titled Gestures.
It’s fun – take a look!

To email me, click Perry S. Itkin.

Building Rapport = 1st Impressions

One of mediation training’s learning objectives is for class members to understand the importance of a mediator demonstrating empathy, building rapport and establishing trust with mediation participants. That’s a detailed way of illustrating the importance of 1st impressions! In this article from Linkage, Inc. you’ll find some useful tips on making a fantastic 1st impression.

Try some or all of them in your next mediation and keep me posted on your triumphs!

By the way, no posts on Thursday or Friday since I will be out of town. So, let me be the first to wish you a very pleasant weekend. Until Monday!

To email me, click Perry S. Itkin.

Mediation and Its Relationship to Attorney’s Fee Award

An agreement reached in a Workers’ Compensation mediation which clarified an ambiguity [in favor of the claimant] as to whether the carrier transferred the claimant’s care from his treating physician to another physician resulted in the First District Court of Appeal decision in Mylock v. Champion International, et al., 2005 Fla. App. LEXIS 11003 [Fla. 1st DCA 2005] that the claimant’s attorney was successful and entitled to an attorney’s fee award.

To email me, click Perry S. Itkin.

How Do You Build A “Tree”?

It’s not exactly a biological organism tree to which I’m referring and, by the way, of what value is this “tree” in mediation? Okay, it’s a “decision tree” which takes a complex problem, diagrams certain key points and possible outcomes [sound familiar], and captures the experience and judgments of the lawyers in analyzing different options for settlement and risks of litigation. Voilà – you have just built a tree! It’s a useful tool in valuing a case according to this article [the “decision tree” can be built manually or with the assistance of computer software] which is a good overview of a Litigation Risk Analysis™ tool.

To email me, click Perry S. Itkin.

Is This What Happens to Family Mediators Who Burn Out?!?

According to this movie review in the Guardian Unlimited, “Wedding Crashers” is being released today. It’s about two lawyers who practice matrimonial mediation and who, after witnessing the horrors of relationships which have “gone bad”, become phobic about commitments. These 2 Casanovas crash weddings and . . . . Couldn’t Hollywood have chosen a profession other than mediation? Is this the way to educate the publice about mediation? Anyway, prepare yourselves for comments from those who see this movie. It’s tough enough when pro se parties get their legal education from the “Common Law of Television” – what are they going to think [please, at least think!] about mediation?

Have a pleasant weekend!

To email me, click Perry S. Itkin.

What Kind of American English Do You Speak?

One of mediation’s general tenets is to reduce obstacles to communication. Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.220 Mediator’s Role and Rule 10.230 Mediation Concepts. It follows that not only do we need to understand, but we also must be understood. Frequently I’m asked by English speaking individuals interested in becoming mediators if their fluency in another language, Spanish for example, would be an asset. Of course, the answer is yes followed by what kind of Spanish do you speak – Spanish Spanish [okay, okay Castilian], Argentine Spanish, Cuban Spanish, Mexican Spanish, Puerto Rican Spanish, Venezuelan Spanish, etc. – you get the idea.

All to say [pun intended], have you ever wondered what kind of American English you speak? Here’s a short on-line 20 question quiz designed to answer the question. Try it, it’s fun! So, is your American English Linguistic Profile “Yankee”, “General American”, “Dixie”, “Midwestern” or “Upper Midwestern”? Any cultural diversity thoughts here?

To email me, click Perry S. Itkin.

Mediation Cancellations – Another Perspective!

An occupational hazard for mediators is the dreaded cancellation – loss of time and money. However, when a mediation is cancelled have you ever paused to think about the effect of that on the mediants [I made that term up!]? For some insight into the answer, read this article in The Advertiser. Mediation is not just about the professionals!

To email me, click Perry S. Itkin.

Documentaries in Mediation

What is negotiation? How about, negotiation is communication for the purpose of persuasion. Ok, ok – you knew that. How about this, “1,000 = W that a P is W”. What does this mean? Here’s a clue. Settlement documentaries are more than just marketing tools they speak volumes [have you figured out the equation yet?]. According to this article in the Tampa Bay Business Journal, settlement documentaries help get serious negotiation points across while simultaneously being discerningly entertaining. What’s in your microwave?!?

If you still need help with the equation, email me and I’ll give you the answer!

Perry

County Court Mediator Volunteers Needed!

According to this article in Hernando Today, the Fifth Judicial Circuit [Lake, Citrus, Marion, Sumter and Hernando Counties, Florida] is offering small claims mediation. Actually, it’s being launched in Hernando [effective July 1] and Sumter Counties [soon] after successes in existing mediation programs in the other 3 counties within the judicial circuit. The County Court needs volunteers, either already certified County Court Mediators or those individuals willing to be trained to become certified County Court Mediators. Contact information is contained in the article.

Anyone interested? Please say “yes”!

To email me, click Perry S. Itkin.

Conflict Resolution – A Video Game for Children + Something for Adults

The Federal Mediation and Conciliation Service has developed a video game for children that teaches them Conflict Resolution as part of an FMCS initiative to combat youth violence according to this report from ABC News. This is an excellent idea!

Now, something for the adults – the Equal Employment Opportunity Commission [EEOC] is offering a new video 10 Reasons to Mediate which introduces businesses to the EEOC’s National Mediation Program. It’s free and might be worthwhile taking a look at.

To email me, click Perry S. Itkin.

Who Should Not Participate in Mediation!

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. [Emphasis added.]

What if one of the mediation participants resists our diligent efforts to fulfill this often challenging task – such as the Michigan lawyer who was barred from the courthouse due to his conduct [imagine that!] as reported in this article in The Macomb Daily? What would you do?

To email me, click Perry S. Itkin.

How Much Does a Penny Weigh?

Actually, try weighing 100,000 pennies! In In Re: Marriage of Powell, Case No. 11-04-00142-CV [TX 11th Ct. of Appeals, 2005] the former husband was ordered to pay $1,000.00 in attorney’s fees to his former wife’s lawyer. He made the payment – you guessed it, in pennies! According to this article in The Texas Lawyer, he contended he was complying with the court order in his own small way [really small!]. The trial court found this conduct to be “frivolous and ridiculous”, although not contemptuous, and ordered the former husband to pay additional attorney's fees and expenses by cashier’s check, money order, or cash [in specified denominations].

Remember, the “devil is in the _____” and, believe it or not, when an agreement requires payment, unless it clearly specifies some other kind of money, the exact performance required is payment by legal tender [i.e., cash] and a check is not legal tender! So, did he comply?

All to say, in fulfilling our responsibility to discuss the implementation of a mediated settlement agreement [Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420(c) Closure], should we ask “what does payment mean, or, in what form will the payment be?” If the answer is “in pennies”, then . . . .

To email me, click Perry S. Itkin.

Sandra Day O’Connor – Mediator for the U.S. Supreme Court!

One of the big news stories, as reported in The New York Times, over this past July 4th Holiday Weekend was the announcement by U.S. Supreme Court Justice Sandra Day O’Connor that she is retiring. Referred to as the “Crucial Swing Vote”, Justice O’Connor has provided incredibly valuable and practical lessons for mediators in the distinctive way she thinks as presented in this 2001 New York Times Magazine article.

Also, according to this article in The Reporter, Justice O’Connor was viewed as the Court’s mediator.

What techniques, skills, and strategies can you adapt to, or apply in, your mediation practice after reading the 2001 article?

To email me, click Perry S. Itkin.

“Florida Mediator” – Now Searchable!

I’ve added a new searchable feature to Florida Mediator to make it even more useful for you. If you scroll down a little, on the right panel you’ll find a familiar looking Google search box. From here you can search Florida Mediator! How about that!

Please let me know how you like this addition!

To email me, click Perry S. Itkin.

“Is Everything We Say in Mediation Confidential?”

You know the answer and it is . . . . Here’s the latest case providing an exception to confidentiality of communications in a court-ordered mediation. In Quintana v. Jenne, Case No. 03-15443, [11th Cir. 2005], a case from the Southern District of Florida, the issue involved an award of attorney’s fees to a prevailing defendant and whether one of plaintiff’s claims was frivolous.

The defendant did not deny making an offer of settlement during the mediation but maintained that any settlement offer should not be considered because it was made during the court-ordered mediation. A critical factor for the appellate court in evaluating whether a settlement offer militates against a determination of frivolity was the amount of the offer.

Note that Local Rule 16.2 for the U.S. District Court for the Southern District of Florida provides for confidentiality of communications in mediation [PDF page 54 which is page 37 of the Rules]. The Form Order of Referral to Mediation and the Comments which follow the Local Rules provide interesting reading on confidentiality.

All to say, exceptions are just that – exceptions [clever, don’t you think!].

Have a very pleasant and safe 4th of July Holiday Weekend!

To email me, click Perry S. Itkin.

Here’s a Valuable Tool for You!

Florida Mediators.org is website that allows visitors requiring the services of a qualified mediator to quickly identify suitable professionals to help settle their dispute. Users can easily search by locality, qualifications, background/case experience and date availability [this expedites the scheduling process by trial lawyers and law firm staffers who schedule mediations]. Your Professional Profile™ and Availability Calendar are online as a “one-stop shop” to facilitate getting yourself professionally “out there” [i.e., Planet Earth – before “War of the Worlds”!].

Plus, like Mom, it even reminds you! Well . . . it reminds you via email to update your calendar when you have not done that for awhile!

Take a look – it’s worth investigating!

To email me, click Perry S. Itkin.

“We Agree!” – Now What?

Like the Carpenters [Remember them? Say ‘yes’!] sang, “We’ve Only Just Begun”. Here’s why - one of the mediator’s ethical responsibilities is to assist the parties in the development of the terms of agreement. Development is a 4 part “ion-process” [I made that up!]:

• Discussion
• Formalization
• Implementation
• Memorialization

As prescribed in Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420 Conduct of Mediation, (c) Closure:

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

The parties’ understandings of who is obligated to do what, by when, how, where, and sometimes why, all clearly written [i.e., unambiguous, detailed content], is critical in order to avoid future problems such as is illustrated in this article in The Citrus County Chronicle.

To email me, click Perry S. Itkin.

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”!

To email me, click Perry S. Itkin.
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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!

To email me, click Perry S. Itkin.
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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!

To email me, click Perry S. Itkin.
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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.
Visit the Mediation Training Center.

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?

To email me, click Perry S. Itkin.
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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?

To email me, click Perry S. Itkin.
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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?

To email me, click Perry S. Itkin.
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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!

To email me, click Perry S. Itkin.
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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!

To email me, click Perry S. Itkin.
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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?

To email me, click Perry S. Itkin.
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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.

To email me, click Perry S. Itkin.
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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]!

To email me, click Perry S. Itkin.
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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!

To email me, click Perry S. Itkin.

“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.

To email me, click Perry S. Itkin.

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.