A Written Mediation Agreement – Why Bother?

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420, Conduct of Mediation, (c) Closure, provides “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.”

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Professional Advice Or Opinions, (b) Independent Legal Advice, provides “When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator shall advise the party of the right to seek independent legal counsel.”

In the Fourth District Court of Appeal case of Matos v. Matos, 2006 Fla. App. LEXIS 1162 [Fla. 4th DCA 2006], the pro se parties went to a lawyer-mediator to work out a “settlement.” The husband moved to enforce the oral “marital settlement agreement.” The mediator testified that the parties came to her after they reached an informal agreement which she was to reduce to writing. Although nothing was in fact written down, the mediator thought that the parties came to an agreement. Moreover, she stated that she was not a constant participant in the negotiations.

There’s much more to the underlying facts in this case, which is worth reading, including domestic violence and financial disclosure issues. The appellate court reversed the final judgment and remanded the case for a new trial on the issue of division of the marital assets and alimony.

What, if anything, might have been different if the parties’ agreement was reduced to writing and the rules above complied with? Given the lawyer-mediator’s testimony, was this really a mediation? What do you think?

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Here’s Florida Legislation You’ll Want To Follow!

The 2006 session of the Florida Legislature will convene March 7th. House Bill 7019 , a bill relating to mediation, was filed January 23, 2006 by the Civil Justice Committee.

In 2005, family court references in the statutes were changed to references to the unified family court model; however, mediation law was not correspondingly changed. This bill redefines mediation in Chapter 44, F.S., to provide for mediation in the unified family court. It reflects the changes created by the passage in 2005 of s. 25.375, F.S., which created the unified family court system and amends s. 44.1011, F.S., to create a definition for “unified family court mediation”. It also makes other technical and corrective changes to mediation law.

A sponsor in the Senate is expected.

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Was Mediation Abused? You Decide.

According to this article in The Miami Herald, seven named plaintiffs in a class action lawsuit challenged the City of Miami’s fire fee and a $7 million settlement was reached in mediation. The 80,000 others supposedly in line to benefit from the class-action got nothing. Also, here’s the memorandum from the Office of the City Attorney about the lawsuit and recommending settlement. Read the article, visualize what may have occurred during mediation, and then decide – was mediation abused? Is this even the right question to ask? What about confidentiality? What do you think?

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“I’m Going To Kill You! Let’s Mediate.”

Well, not exactly! According to this article from News 14 Carolina, a high school student who was accused of cheating by his teacher allegedly screamed at her, “I’m going to kill you!” She obtained a restraining order against him [there was more than just the screaming]. At a hearing to extend the restraining order, the teacher and the student agreed to go to mediation and they reached an agreement, some of the terms of which are in the article. How about that!

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The Sky Is Not The Limit!

Mediation is powerful – it provides disputing parties with opportunities to craft outcomes tailored to their unique needs and circumstances in ways that neither judge nor jury can develop via decision or verdict. However, there are limits as demonstrated by the First District Court of Appeal in Wakeman v. Dixon, 2006 Fla. App. LEXIS 659 [Fla. 1st DCA 2006]. Although these were not mediation agreements, the several agreements entered into by this same sex couple providing for co-parenting for two children born to one of them as a result of sperm donation, were creative, tailored and unenforceable. Under Florida law, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and agreements providing for visitation by a non-parent are unenforceable.

The concurring opinion urged the legislature to address the needs of children born into or raised in non-traditional households when a break-up occurs.

I wonder, if someone can waive their right to an attorney during in-custody interrogation or otherwise waive their Fifth Amendment privilege against self-incrimination, can they waive their constitutional right to privacy in a mediation agreement? What do you think?

To email me, click Perry S. Itkin.

What Was On The Mind Of A Murderer?

In the latest of a series of posts about the murder trial of the husband who stabbed his wife to death after a mediation conference, this article from Inside Bay Area gives us an uncommon insight into what the mediant [I made that up] husband was thinking about as his expectation of family mediation. He testified in his defense. Now, I was not being judgmental [I’m still a mediator] when I titled this post. According to this article in The Mercury News the jury found him guilty of first-degree murder.

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“The Check Is In The Mail!”

“Yeah, right!” Wait, what if it is really in the mail? The big question is what do you mean by “check”? According the Second District Court of Appeal in JLA Investment Corporation v. Colony Insurance Company, 2006 Fla. App. LEXIS 472 [Fla. 2nd DCA 2006] the parties, in this mediation agreement, settled their dispute by the appellee paying appellant $250,000.00 by bank or casher’s check by a date certain. All clear, right? Not so fast! Appellee timely delivered a check drawn on its corporate bank account. Appellant objected to the form of the payment, renounced the settlement and demanded $300,000.00 to settle its claim. Nice try [not really]. Appellant contended, as part of its defense to a Motion to Enforce a Settlement Agreement, that the agreement contemplated payment by an “immediately cashable” instrument. Not so said the appellate court. It’s a short, interesting opinion that’s worth reading to find out why not. Check it out [okay, I’m sorry for the pun]!

Seriously, what’s the agreement drafting lesson for us?

To email me, click Perry S. Itkin.

MEAC Opinion 2005-006 Now Online!

Here’s the summary of MEAC Opinion 2005-006 which addresses a conflict of interest inquiry:

A mediator (who is also an attorney) engaged in an ongoing legal relationship with a third party administrator must not serve as a mediator in cases involving the third party administrator because it is a clear, nonwaivable conflict of interest. A mediator (who is also an attorney) may serve in cases involving a reinsurer, even if some of the mediator’s legal clients utilize the same re-insurer, if the relationship is disclosed and the parties waive any potential conflict because such a relationship is not a clear conflict of interest.

To email me, click Perry S. Itkin.

“Ineffective Assistance Of Mediator”

Often criminal defendants raise the issue of ineffective assistance of counsel in their request for post-conviction relief as shown in the Third District Court of Appeal opinion, Carter v. State, 2006 Fla. App. LEXIS 389 [Fla. 3rd DCA 2006]. Mediators can avoid the claim of “ineffective assistance of mediator” [I made that up!] when parties attempt to set aside a mediation agreement by adhering to the lesson to be learned from reading this opinion. For example, think about the types of questions you might ask the disputing parties before they sign the agreement, i.e. have you read each and every word of the agreement, have you discussed it with your attorney, do you fully understood its provisions and what you have to do to comply with the agreement. A pretty good idea, don’t you think?!? What other types of questions might you think of to ask? Let me know, ok?!?

To email me, click Perry S. Itkin.

A Mediator Testifies

I’ve been following the news accounts of the murder trial of a husband who stabbed his wife to death after a mediation conference. The post this past Wednesday and the post earlier this month provide the foundation for today’s offering. According to this article in The San Mateo Daily Journal the family mediator testified that the Husband calmly left the mediation after he stood up and announced “I think we’re done here, thank you very much.” The mediator also said “It was well within the range of what I see” on a usual basis. All to say, expect the unexpected! There is nothing usual about the unexpected.

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Don’t Read This If You Are Squeamish.

If this were a television program the warning might be something like “For Mature Audiences; Violence”. In an earlier post I wrote about a post-mediation homicide. The trial just began and according to this article from CBS 5: Bay City News Wire the prosecutor’s opening statements present a grim scenario which holds a plethora of lessons for mediators, especially in screening for domestic violence. Another article in The San Mateo Daily News provides additional information. In poker the saying goes “Read ‘em an’ weep!” The morphed saying for mediators could be “Read ‘em [the parties, not the cards] an’ weep! Think! Plan”!

This is serious. Please be careful!

To email me, click Perry S. Itkin.

New Continuing Mediator Education Seminars for 2006!

We have developed 2 new extraordinary Continuing Mediator Education programs for 2006. One is “CPR for Your Mediation Practice” and the other is “Skill Enhancements for Mediation Professionals”. Each seminar offers 8 CME hours, including 5 Ethics and The Florida Bar has approved each seminar for 8 CLER hours and 5 in Ethics. Visit the Mediation Training Center to learn more!

I couldn’t help taking a moment to do some marketing!

To email me, click Perry S. Itkin.

“I’m Not Sitting There!”

One of the basic concepts for mediators to learn is to be attentive to the physical mediation environment – i.e., setting up the room, seating arrangements, the size and shape of the table, whether a table is used at all, etc. Imagine the dispute to be over who sits where! Okay, don’t imagine – it’s real according to this article in CBC Nova Scotia. The local school board is looking at canceling future meetings until a mediator is brought in to help settle a dispute over the seating arrangement. The dispute is actually deeper than what appears on the surface [I know, what a surprise!] according to this article from CBC Nova Scotia which provides a little more background.

To email me, click Perry S. Itkin.

“Wait For The Cognac!”

Mediators strive to avoid cultural ignorance. Here’s an interesting article from In-House Counsel on-line providing some tips for working with individuals from other countries. Although it’s directed to lawyers, it’s a nice article for mediators too and a pleasant way to end the week!

To email me, click Perry S. Itkin.

Rules Are Made To Be Followed!

You knew that, right?!? From time to time, posts on Florida Mediator cite Florida Rules for Certified and Court-Appointed Mediators. Many of the Rules contain references to mediator conduct that is specifically prohibited [mandatory rules] – i.e., the “shall not” Rules. In Genuine Parts Company, et al. v. Parsons, 2006 Fla. App. LEXIS 134 [Fla. 4th DCA 2006] the Fourth District Court of Appeal, a case involving the Florida Rules of Civil Procedure and setting a matter for trial, said “We do not adhere to the plaintiff’s theory that the rules of civil procedure were meant to be broken.” Imagine that! Anyway, this is just a beginning of the year reminder for mediators that maybe now would be a good time to brush up on our rules of conduct.

To email me, click Perry S. Itkin.

Safety Is A Concern For Mediators

Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination, provides that: A mediator shall:

(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.

What about the aftermath – i.e., what happens after the mediation conference? When does the mediator’s ethical obligation end? According to this sad article in The Mercury News, a husband lay in wait for his wife in an elevator after storming out of the mediation session. He allegedly continued the attack even as police arrived. The wife had been denied a restraining order against her husband two weeks before her death.

Do you have any concerns about mediator liability here? Please be careful!

To email me, click Perry S. Itkin.

Mediation and Cultural Diversity – An Example

According to this article from The Hawaii Channel a federal judge proposed a way to end a standoff that has kept a Hawaiian leader in prison after refusing to tell where Hawaiian artifacts have been placed in Big Island burial caves. The judge suggested participation in a Hawaiian-style mediation process. What isn’t clear from the judge’s proposal was whether this was ho’oponopono or some other form of mediation. A cultural concern is what form of mediation the court was talking about.

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Back To Basics – Grammar Is Important!

In Tiny Treasures Academy & Get Well Center, Inc. v. Stirling Place, Inc., 2005 Fla. App. LEXIS 20276 [Fla. 4th DCA 2005] the Fourth District Court of Appeal relied on the rule of ejusdem generis [the rule of whaat?!?] to interpret prepositions and nouns and decided that the prepositional phrase “to the premises” modified the noun “damages”, as in “damages to the premises” – this entire phrase is clear, right? Well, it was the issue on appeal. The opinion is a quick read, the “rule of whaat?!?” is explained and, yes, we’re back to basics. All to say the written word is still important [but you knew that, right?!?].

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Virtual Visitation – A Tool for Family Mediators

This article in the Wisconsin State Journal highlights several on-line websites for divorced parents to assist them in communicating with each other and with their children. These helpful tools should be in the “toolboxes” of family mediators. Take a look at these valuable resources – good ideas for parents who cannot, or choose not to, communicate directly with each other as well as for those parents who are not “communication challenged”.

To email me, click Perry S. Itkin.

Hunting and Mediation?

According to this article in The Daytona Beach News-Journal shooting the bird had nothing to do with hunting. A complaint about obscene road rage gestures was resolved in mediation. Actually, it took more than one mediation session to reach an agreement. The parties were a teacher and a public safety director. Who do you think was the “hunter”? There’s more to the story.

To email me, click Perry S. Itkin.