You know, Detective Vic Mackey on The Shield. OK, not really him but how about mediation of citizen complaints against police officers. Last year the City of Seattle initiated a mediation program for that precise purpose as reported in this news advisory. It is administered by the Office of Professional Accountability within the Seattle Police Department. According to this article in the Seattle Post-Intelligencer the 7 month young program is off to a slow start. Even so, it’s working! Like good wine and good olive oil, it takes time to mature. Continue with your fine efforts!
To email me, click Perry S. Itkin.
Wednesday, March 15, 2006
Tuesday, March 14, 2006
“Now That I’m Retired, I Have Time To Meditate!”
Wait a minute – I actually mis-titled that on purpose to see if you were paying attention and – you were! Excellent! According to this article in The Gainesville Sun, several retired Circuit Court judges have opened The Resolution Center to provide a range of alternative dispute resolution services to supplement the judicial system and to assist the community in resolving neighborhood disputes. Best wishes for much success!
To email me, click Perry S. Itkin.
To email me, click Perry S. Itkin.
Monday, March 13, 2006
“So, What Goodies Do You Have To Offer?”
Here’s an interesting post on Legal Underground by a first year litigation associate [Unnamed Associate] on their first attendance at mediation. The
comments are fun too!
What do you offer mediation participants?
To email me, click Perry S. Itkin.
comments are fun too!
What do you offer mediation participants?
To email me, click Perry S. Itkin.
Friday, March 10, 2006
If It’s In Black And White, It Must Be . . . Gray!
Although the main issue in Daniel v. Daniel, 2006 Fla. App. LEXIS 3321[Fla. 4th DCA 2006] was whether the trial court lawfully ordered the husband to file a financial affidavit in this non-simplified dissolution of marriage action [the answer is yes], the Fourth District Court of Appeal’s recitation of the mediation facts teaches us that which we already know – the rules must be followed!
The mediation agreement provided that it is “intended to be a full, final and binding settlement of all issues” in the case and that there had “been full and complete disclosure of all marital assets and liabilities.”
The day after the court entered an order approving the mediation agreement, the Wife filed a motion to set the agreement aside claiming, among other things, that there had been no “full and frank disclosure” of the assets because the Husband had not filed a financial affidavit. In a second motion to set aside the mediation agreement the Wife alleged that the mediation left her “physically and emotionally exhausted” and that a financial affidavit was mandatory because the mediation agreement contemplated “permanent financial relief.”
Context is important. Florida Family Law Rules of Procedure, Rule 12.285(a)(1) requires the filing of a financial affidavit, a “requirement [that] cannot be waived by the parties.”
All to say, just because the mediation agreement recites that there was full disclosure, in the absence of the filing of a financial affidavit what appears to be black and white is, well – gray! Be careful in drafting the mediation agreement. Mediators have an ethical obligation to the parties in “assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(a), Self-Determination, Decision-making, and further, “[a] mediator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting a mediation,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(c), Misrepresentation prohibited.
To email me, click Perry S. Itkin.
The mediation agreement provided that it is “intended to be a full, final and binding settlement of all issues” in the case and that there had “been full and complete disclosure of all marital assets and liabilities.”
The day after the court entered an order approving the mediation agreement, the Wife filed a motion to set the agreement aside claiming, among other things, that there had been no “full and frank disclosure” of the assets because the Husband had not filed a financial affidavit. In a second motion to set aside the mediation agreement the Wife alleged that the mediation left her “physically and emotionally exhausted” and that a financial affidavit was mandatory because the mediation agreement contemplated “permanent financial relief.”
Context is important. Florida Family Law Rules of Procedure, Rule 12.285(a)(1) requires the filing of a financial affidavit, a “requirement [that] cannot be waived by the parties.”
All to say, just because the mediation agreement recites that there was full disclosure, in the absence of the filing of a financial affidavit what appears to be black and white is, well – gray! Be careful in drafting the mediation agreement. Mediators have an ethical obligation to the parties in “assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(a), Self-Determination, Decision-making, and further, “[a] mediator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting a mediation,” Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310(c), Misrepresentation prohibited.
To email me, click Perry S. Itkin.
Thursday, March 09, 2006
You’re A Mediator – Are You A Mind Reader Too?
Of course you are! Among the learning objectives in your training program are to identify and demonstrate appropriate non-verbal communication and to develop an awareness that people differ in how they make decisions, how they process information, and how they communicate.
According to this article [which contains a couple of interesting exercises] in CIO, accurately interpreting the meanings of nonverbal communications, especially facial expressions, is a skill that can make you more effective in your leadership role and then you can decide whether and how to act on the information you obtain just from reading faces.
Imagine that!
To email me, click Perry S. Itkin.
According to this article [which contains a couple of interesting exercises] in CIO, accurately interpreting the meanings of nonverbal communications, especially facial expressions, is a skill that can make you more effective in your leadership role and then you can decide whether and how to act on the information you obtain just from reading faces.
Imagine that!
To email me, click Perry S. Itkin.
Wednesday, March 08, 2006
Mediator Testifies As To Party Capacity!
The Tennessee case of McMahan v. McMahan, 2005 Tenn. App. LEXIS 756 (Tenn. App. 2005) is very instructive for mediators on how a mediator might testify as to party capacity without violating confidentiality. There’s also much more of value on other points in the opinion.
The Husband moved to enforce a handwritten mediation agreement which the Wife and Husband and their counsel signed or initialed, when the Wife attempted to repudiate the longhand agreement, arguing that it was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement.
The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The appellate court found that the mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation. The trial court then enforced the agreement and this was affirmed on appeal.
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310 (d), Self-Determination, Postponement or Cancellation provides that “If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.”
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination, provides that
A mediator shall:
(1) adjourn the mediation upon agreement of the parties;
(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;
(3) 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;
(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and
(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.
[Emphasis added.]
While we’re to be non-judgmental as between the parties, aren’t mediators making “judgment calls” all the time? Take a look at how the mediator was permitted to testify and reconcile the testimony with the above rules.
To email me, click Perry S. Itkin.
The Husband moved to enforce a handwritten mediation agreement which the Wife and Husband and their counsel signed or initialed, when the Wife attempted to repudiate the longhand agreement, arguing that it was not enforceable because of duress, lack of capacity, and that it was not intended to be an enforceable agreement.
The trial court held a hearing at which the mediator testified that Wife's mental condition did not appear impaired during the mediation. The appellate court found that the mediator in this case was careful not to testify to statements or assertive conduct made by Wife. She did not disclose confidential information or attempt to prove liability via conduct or statements made in the course of the mediation. The trial court then enforced the agreement and this was affirmed on appeal.
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.310 (d), Self-Determination, Postponement or Cancellation provides that “If, for any reason, a party is unable to freely exercise self-determination, a mediator shall cancel or postpone a mediation.”
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination, provides that
A mediator shall:
(1) adjourn the mediation upon agreement of the parties;
(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;
(3) 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;
(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and
(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.
[Emphasis added.]
While we’re to be non-judgmental as between the parties, aren’t mediators making “judgment calls” all the time? Take a look at how the mediator was permitted to testify and reconcile the testimony with the above rules.
To email me, click Perry S. Itkin.
Tuesday, March 07, 2006
The Need For Tweaking Can Be Fatal!
The case settled – no it didn’t; yes it did; no; yes; etc.
All mediators should read the New Jersey opinion Lehr v. Afflitto, 2006 N.J. Super. LEXIS 8 (N.J. App. 2006). It’s a long one, full of good lessons on a variety of topics [i.e. mediator’s opening statement, mediator responsibilities to the court, confidentiality and waiver, party remorse, clarity of communication, right to attorney review of agreements, plus more] and well worth reading!
The divorcing couple was ordered to mediation which occurred over two sessions and resulted in a memorandum of understanding [MOU] written by the mediator, who acknowledged “tweaking” was necessary on several issues. The plaintiff represented to the court that the matter was completely settled in mediation. Notwithstanding the fact that everyone agreed that the parties never created nor signed a property settlement agreement, the court used the mediator’s MOU as proof that the divorce was resolved and entered judgment. The defendant appealed.
The Appeals Court held that admission of the mediator’s MOU was error since the parties never waived their right for the mediation to remain confidential. The Appeals Court also held that there was no settlement because certain financial issues were left unresolved, showing a lacking of a final agreement. The mediator did not make a report to the court as required by the court order.
The appellate court viewed the trial judge’s taking testimony from the mediator with disappointment and said that “confidentiality of the mediation process is a matter of great public and systemic importance.” The court identified several bases for confidentiality in mediation: terms in the court order to mediate; the mediator’s oral statements to the parties; applicable court rules; and principles of the Uniform Mediation Act which the court stated was an “appropriate analytical framework” even though the UMA was not in force during the time in question.
So, after reading the opinion, how will you conduct your next mediation?
To email me, click Perry S. Itkin.
All mediators should read the New Jersey opinion Lehr v. Afflitto, 2006 N.J. Super. LEXIS 8 (N.J. App. 2006). It’s a long one, full of good lessons on a variety of topics [i.e. mediator’s opening statement, mediator responsibilities to the court, confidentiality and waiver, party remorse, clarity of communication, right to attorney review of agreements, plus more] and well worth reading!
The divorcing couple was ordered to mediation which occurred over two sessions and resulted in a memorandum of understanding [MOU] written by the mediator, who acknowledged “tweaking” was necessary on several issues. The plaintiff represented to the court that the matter was completely settled in mediation. Notwithstanding the fact that everyone agreed that the parties never created nor signed a property settlement agreement, the court used the mediator’s MOU as proof that the divorce was resolved and entered judgment. The defendant appealed.
The Appeals Court held that admission of the mediator’s MOU was error since the parties never waived their right for the mediation to remain confidential. The Appeals Court also held that there was no settlement because certain financial issues were left unresolved, showing a lacking of a final agreement. The mediator did not make a report to the court as required by the court order.
The appellate court viewed the trial judge’s taking testimony from the mediator with disappointment and said that “confidentiality of the mediation process is a matter of great public and systemic importance.” The court identified several bases for confidentiality in mediation: terms in the court order to mediate; the mediator’s oral statements to the parties; applicable court rules; and principles of the Uniform Mediation Act which the court stated was an “appropriate analytical framework” even though the UMA was not in force during the time in question.
So, after reading the opinion, how will you conduct your next mediation?
To email me, click Perry S. Itkin.
Tuesday, February 28, 2006
“If You Had Only Told Me!” – A Defense To Sanctions
In the Fifth District Court of Appeal case, Hernando County School Board v. Nazar, 2006 Fla. App. LEXIS 1995 [Fla. 5th DCA 2006], appellant filed a motion with the appellate court seeking the imposition of sanctions against appellee, Paul Nazar, and his counsel, Peter Capua, for their failure to appear at court-ordered appellate mediation.
The mediator, appellant’s counsel and party representatives all traveled to the site of the mediation. Nazar did not appear for the scheduled mediation. Attorney Capua did not appear in person for the mediation, although he attempted to appear by telephone. While no motion was filed with the court seeking to be excused from the personal appearance requirement, Capua contacted the mediator's office and sought to be excused from appearing personally at the mediation [not a good move]. The mediator did not excuse [this was a good move] the personal appearance of either Capua or Paul Nazar due to the court’s order which expressly stated that personal attendance can only be excused by the court.
To learn what reasons were given for not appearing and what the sanctions were, read the opinion. It’s a quick read.
To email me, click Perry S. Itkin.
The mediator, appellant’s counsel and party representatives all traveled to the site of the mediation. Nazar did not appear for the scheduled mediation. Attorney Capua did not appear in person for the mediation, although he attempted to appear by telephone. While no motion was filed with the court seeking to be excused from the personal appearance requirement, Capua contacted the mediator's office and sought to be excused from appearing personally at the mediation [not a good move]. The mediator did not excuse [this was a good move] the personal appearance of either Capua or Paul Nazar due to the court’s order which expressly stated that personal attendance can only be excused by the court.
To learn what reasons were given for not appearing and what the sanctions were, read the opinion. It’s a quick read.
To email me, click Perry S. Itkin.
Monday, February 27, 2006
I’m A Better Decision Maker When I’m Unconscious!
Okay, not really – but maybe! According to this article in Science magazine [subscription required] important decisions are better made when the thoughts about them are “put out of mind” and the choices are complex. The “deliberation without attention” theory has application in mediation. To learn a little more about the concept you might like to read about the study in this article from Yahoo.com News or this article [registration required and it’s free] in the New York Times.
So, the next time you hear a party say “I’d like to sleep on it overnight” [allowing unconscious thought to kick in], you just might suppose that has some value – or not [depending on . . . .].
Think about it [pun intended] – have you ever awakened with a great idea or a solution to a problem?!?
To email me, click Perry S. Itkin.
So, the next time you hear a party say “I’d like to sleep on it overnight” [allowing unconscious thought to kick in], you just might suppose that has some value – or not [depending on . . . .].
Think about it [pun intended] – have you ever awakened with a great idea or a solution to a problem?!?
To email me, click Perry S. Itkin.
Friday, February 24, 2006
President Bush On Mediation – What Did He Say?!?
In an interview reported in Pakistan’s Daily Times, President Bush was asked about proposals for mediating between India and Pakistan:
“Q: Mr. President, in your speech, you talked about the Kashmir dispute and you said that you would like India and Pakistan to take bilateral steps to resolve the dispute. Pakistan has made certain proposals, but they are not reciprocated by India. And it seems that this bilateral process is not going anywhere. There’s need for a third-party mediation or some sort of help. Do you have any specific proposals for that?
Bush: First, I’d like to make sure I clarify my statement for all to read. America supports a solution that is acceptable to all sides — since you’re probably the only person in the room that paid attention to my speech. In the speech, as you know, I said “to both sides”. The language should be “all sides”, because it recognises [sic] that a solution must be acceptable to India, Pakistan and those living within Kashmir. Our position is one that says a dispute that has been so long in a nation’s history can best be resolved when two nations make the determination to sit down and come up with a solution that is acceptable to all sides. Of course, during my discussions, I will encourage that dialogue to go forward. I’m convinced that history changes, and as history changes, attitudes can change, circumstances change, and that we have a possibility to see this issue resolved by strong and courageous leaders. I’m pleased to see the amount of trade that’s taking place between India and Pakistan. It’s a substantial increase from July of ‘04 to July of ‘05. I thought that the — the new transportation routes between India and Pakistan are hopeful signs. And so the role of the United States, in our judgment, is one that will help lead to a settlement that is acceptable to all sides.”
What?!?
To email me, click Perry S. Itkin.
“Q: Mr. President, in your speech, you talked about the Kashmir dispute and you said that you would like India and Pakistan to take bilateral steps to resolve the dispute. Pakistan has made certain proposals, but they are not reciprocated by India. And it seems that this bilateral process is not going anywhere. There’s need for a third-party mediation or some sort of help. Do you have any specific proposals for that?
Bush: First, I’d like to make sure I clarify my statement for all to read. America supports a solution that is acceptable to all sides — since you’re probably the only person in the room that paid attention to my speech. In the speech, as you know, I said “to both sides”. The language should be “all sides”, because it recognises [sic] that a solution must be acceptable to India, Pakistan and those living within Kashmir. Our position is one that says a dispute that has been so long in a nation’s history can best be resolved when two nations make the determination to sit down and come up with a solution that is acceptable to all sides. Of course, during my discussions, I will encourage that dialogue to go forward. I’m convinced that history changes, and as history changes, attitudes can change, circumstances change, and that we have a possibility to see this issue resolved by strong and courageous leaders. I’m pleased to see the amount of trade that’s taking place between India and Pakistan. It’s a substantial increase from July of ‘04 to July of ‘05. I thought that the — the new transportation routes between India and Pakistan are hopeful signs. And so the role of the United States, in our judgment, is one that will help lead to a settlement that is acceptable to all sides.”
What?!?
To email me, click Perry S. Itkin.
Thursday, February 23, 2006
If It Looks, Walks And Quacks Like A Duck – It’s Not Mediation! It’s A Duck!
There is a myriad of alternative dispute resolution processes. You know them – negotiation, conciliation, facilitation, mediation [of course], early neutral evaluation, ombudsman, fact-finding, mini-trial, summary jury trial, arbitration, private judging, and litigation [again, of course]. There are combinations of these and other processes [we are very clever thinkers!]. There are also other ADR processes as well. All to say, the most visible are negotiation, mediation, arbitration and litigation. What happens sometimes [and sadly so] is that some of the other ADR processes are called mediation when, in fact, they are not as reflected in this opinion letter to 2TheAdvocate.com in Baton Rouge, Louisiana. Reading it, you can almost feel the writer’s frustration. You can, can’t you?
To email me, click Perry S. Itkin.
To email me, click Perry S. Itkin.
Wednesday, February 22, 2006
It’s Not What It Seems
According to the headline in Yahoo’s UK Entertainment News, actress Sharon Stone “lost” custody of her son as a result of an agreement reached in mediation. Not so fast! Take a look at the article. Was this a “good” agreement? “Good” for whom? What do you think about the agreement? Are more details needed before you come to a conclusion?
Remember, Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.320, Nonparticipating Persons, provides “A mediator shall promote awareness by the parties of the interests of persons affected by actual or potential agreements who are not represented at mediation.”
To email me, click Perry S. Itkin.
Remember, Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.320, Nonparticipating Persons, provides “A mediator shall promote awareness by the parties of the interests of persons affected by actual or potential agreements who are not represented at mediation.”
To email me, click Perry S. Itkin.
Tuesday, February 21, 2006
The Impartiality Hokey-Pokey!
According to the Second District Court of Appeal in Stevens v. Americana Healthcare Corp., 2006 Fla. App. LEXIS 1536 [Fla. 2nd DCA 2006], a writ of prohibition was issued against a trial judge, who first suggested he could not be impartial and then changed his mind when a party moved to disqualify him, and denied the motion to disqualify.
The judge voluntarily disclosed a personal or social relationship with some of the witnesses [a good move], invited the parties to make a motion for disqualification [another good move], suggested it would be granted [an even better move] but then denied the timely motion [a very bad move]. The appellate court did not believe that the trial judge’s voluntary disclosure of his friendship or acquaintance with some of the witnesses who might testify at trial in this matter was sufficient by itself to require the judge's disqualification. It was the judge’s remarks thereafter that lead to his disqualification.
What can mediators learn from this opinion?
Well, for starters how about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.340(a) and (c), Conflicts of Interest?
(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.
(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.
All to say, conflicts of interest and impartiality are closely connected [but you knew that, right?!?] and something we should always be attentive to.
To email me, click Perry S. Itkin.
The judge voluntarily disclosed a personal or social relationship with some of the witnesses [a good move], invited the parties to make a motion for disqualification [another good move], suggested it would be granted [an even better move] but then denied the timely motion [a very bad move]. The appellate court did not believe that the trial judge’s voluntary disclosure of his friendship or acquaintance with some of the witnesses who might testify at trial in this matter was sufficient by itself to require the judge's disqualification. It was the judge’s remarks thereafter that lead to his disqualification.
What can mediators learn from this opinion?
Well, for starters how about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.340(a) and (c), Conflicts of Interest?
(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.
(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.
All to say, conflicts of interest and impartiality are closely connected [but you knew that, right?!?] and something we should always be attentive to.
To email me, click Perry S. Itkin.
Monday, February 20, 2006
“E.T.” Is Barred From Mediation!
Well, not exactly the real “E.T.” [the real E.T.?]– the concept is there however according to this article in The Birmingham News. A U.S. District Court Judge [not in Florida] ordered all parties [HealthSouth, investors and insurers] to stay at a mediation session until the mediator releases them. The Judge also ordered that the “designated client representative of each defendant shall have absolute authority to settle without the need to phone home for additional authority.”
Florida Rules of Civil Procedure, Rule 1.720(b), Mediation Procedures – Sanctions for Failure to Appear, requires, among others, the appearance of the party or its representative having full authority to settle without further consultation or a representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.
So, the Judge’s order on the issue of authority to settle is consistent with the above rule. However, what do you think about that part of the order that requires the parties to stay in mediation until released by the mediator? Any ethical dilemmas here? How do you balance the mediator’s responsibilities to the court with the mediator’s responsibilities to the parties?
What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination?
A mediator shall:
(1) adjourn the mediation upon agreement of the parties;
(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;
(3) 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;
(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and
(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.
After considering this rule, would you mediate under this order or would you decline the appointment?
To email me, click Perry S. Itkin.
Florida Rules of Civil Procedure, Rule 1.720(b), Mediation Procedures – Sanctions for Failure to Appear, requires, among others, the appearance of the party or its representative having full authority to settle without further consultation or a representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.
So, the Judge’s order on the issue of authority to settle is consistent with the above rule. However, what do you think about that part of the order that requires the parties to stay in mediation until released by the mediator? Any ethical dilemmas here? How do you balance the mediator’s responsibilities to the court with the mediator’s responsibilities to the parties?
What about Florida Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination?
A mediator shall:
(1) adjourn the mediation upon agreement of the parties;
(2) adjourn or terminate any mediation which, if continued, would result in unreasonable emotional or monetary costs to the parties;
(3) 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;
(4) terminate a mediation entailing fraud, duress, the absence of bargaining ability, or unconscionability; and
(5) terminate any mediation if the physical safety of any person is endangered by the continuation of mediation.
After considering this rule, would you mediate under this order or would you decline the appointment?
To email me, click Perry S. Itkin.
Friday, February 17, 2006
Mediation Training Means Something!
According to this article on AllAfrica.com, the Centre for Effective Dispute Resolution [CEDR] reports that in Lagos, Nigeria, the problems Nigerians have in resolving conflicts, was as a result of the fact that well trained mediators have been denied the privilege of mediating in such conflict situations. Simply put, untrained mediators “mess things up”. I know, you’re shocked!
To email me, click Perry S. Itkin.
To email me, click Perry S. Itkin.
Thursday, February 16, 2006
Gender and Negotiation – Is There A Nexus?
According to this article from the Harvard Business School’s Working Knowledge, gender is not a good predictor of negotiation performance, but ambiguous situations can trigger different behaviors by men and women. Suggestions are offered on how to neutralize the differences and reduce inequities. How would you implement these suggestions in your mediations?
To email me, click Perry S. Itkin.
To email me, click Perry S. Itkin.
Wednesday, February 15, 2006
“Florida Mediator” Posts Are Now Available By E-mail!
Never miss another post! If you like Florida Mediator then perhaps you’d like to sign up to receive it by email. Just scroll down this page and near the end of the right column, enter your email address and click on the “Subscribe me!” button. You’ll receive an email requesting that you confirm your subscription registration. It’s as easy as that!
To email me, click Perry S. Itkin.
To email me, click Perry S. Itkin.
Tuesday, February 14, 2006
Am I Qualified To Be A Mediator? Part II.
In an earlier post last year, I reported that the ADR Rules and Policy Committee of the Florida Supreme Court filed its Petition to amend the Florida Rules for Certified and Court-Appointed Mediators relating to revising the qualifications for mediator certification and other matters. Oral argument was held February 8, 2006. Judge Shawn Briese, Chair of the ADR Rules and Policy Committee, presented a masterful argument in support of the petition. A large part of the questioning focused on non-lawyers serving as mediators.
You can watch a video of the argument or you can read the transcript. It’s quite interesting!
Now, we wait.
To email me, click Perry S. Itkin.
You can watch a video of the argument or you can read the transcript. It’s quite interesting!
Now, we wait.
To email me, click Perry S. Itkin.
Monday, February 13, 2006
Mediation Failed – What Do Parties Think About?
$51,000.00 was spent by the City of Clarksville, Tennessee, on mediation in racial discrimination lawsuits involving police officers and the police department. Mediation “failed” according to this editorial in The Leaf-Chronicle. What do you think the people of Clarksville are wondering about? If you were the mediator, is there any positive foreshadowing you would have done in this situation?
To email me, click Perry S. Itkin.
To email me, click Perry S. Itkin.
Thursday, February 09, 2006
Florida Family Law Rules of Procedure Amended
The Florida Supreme Court, in In Re Amendments To Florida Family Law Rules Of Procedure Form 12.900(a), SC05-2154 [Fla. 2006], adopted Florida Family Law Rules of Procedure Form 12.900(a) effective immediately.
This form must be used when anyone who is not a lawyer in good standing with The Florida Bar helps a party complete any Florida Family Law Form. The nonlawyer must complete this form and both the party and the nonlawyer are required to sign it before the nonlawyer assists the party in completing any Family Law Form.
This is important information for Family Law Mediators who are not lawyers. It would be helpful to read the opinion and the form itself in conjunction with MEAC Opinions 2000-009 and 2001-003. In summary, these opinions advise that “assisting pro se litigants with filling out forms approved by the Supreme Court of Florida after a mediated settlement agreement is not a per se violation of the mediation rules; however, caution should be exercised to ensure compliance with mediation rules and other professions’ standards of conduct.”
To email me, click Perry S. Itkin.
This form must be used when anyone who is not a lawyer in good standing with The Florida Bar helps a party complete any Florida Family Law Form. The nonlawyer must complete this form and both the party and the nonlawyer are required to sign it before the nonlawyer assists the party in completing any Family Law Form.
This is important information for Family Law Mediators who are not lawyers. It would be helpful to read the opinion and the form itself in conjunction with MEAC Opinions 2000-009 and 2001-003. In summary, these opinions advise that “assisting pro se litigants with filling out forms approved by the Supreme Court of Florida after a mediated settlement agreement is not a per se violation of the mediation rules; however, caution should be exercised to ensure compliance with mediation rules and other professions’ standards of conduct.”
To email me, click Perry S. Itkin.
Subscribe to:
Posts (Atom)