Pre-suit Employment Dispute Resolution Policy Upheld

In Caley v. Gulfstream Aerospace Corp., 2005 U.S. App. LEXIS 23518 (11th Cir. October 31, 2005) an employee’s challenge to the employer’s adoption of a dispute resolution policy [DRP] was dismissed and the dismissal was affirmed on appeal. The plaintiffs’ continued employment after receipt of the policy and accompanying clear notice constituted assent to the DRP’s terms.

The DRP provided an exclusive procedure to resolve covered workplace disputes and when it was implemented it became a condition of continued employment. The DRP established a four-level dispute-resolution process, as follows: Level One: Human Resources Review; Level Two: Management Panel Review; Level Three: Mediation; Level Four: Arbitration. The DRP explained how each level would work and set forth specific discovery rules.

The opinion contains a fairly detailed presentation of the DRP – it’s worth reading! What do you think about this early intervention ADR program?

To email me, click Perry S. Itkin.

Lawyers As Peacemakers

According to this article in the Jacksonville Financial News and Daily Record, the speakers at the Jacksonville Bar Association Judicial/Bar Symposium declared that lawyers have a long way to go before they can be described as peacemakers. Among the interesting concepts mentioned is “the emerging field of lawyer personality”. Any message here for mediators and lawyers?

Speaking of peace, please accept my best wishes to you and your family for a Happy Thanksgiving!

To email me, click Perry S. Itkin.

National Mediation Helpline – Is This A Good Idea?

According to the National Mediation Helpline website, this is a service that will help explain the basic principles of mediation, answer general inquiries relating to mediation and put the inquirer in touch with one of the designated Mediation Providers. The Mediation Provider will then assign a professional and experienced Mediator. A telephone number is offered on the website to encourage callers to speak to an “adviser” who will take some basic information which is forwarded to a Mediation Provider. By the way, the prospective caller is assured of confidentiality during the phone call [I knew you were wondering about that].

So, do you think this is a good idea? Any problems here? Oh, this helpline is in the United Kingdom – not the United States!

To email me, click Perry S. Itkin.

Mediation May Be Taxing!

Well, it’s not exactly what you might be thinking! The Florida Supreme Court, in its opinion In Re: Amendments to Uniform Guidelines for Taxation of Costs, 2005 Fla. LEXIS 2285 [Fla. 2005], has adopted proposed revisions to the guidelines especially since they met the criteria and concerns of the Court’s stated policy of “reducing the impact of costs upon parties, with the ultimate aim of decreasing the overall costliness of litigation.” Under these guidelines, it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken. The revisions are effective January 1, 2006.

Among the litigation expenses that may be taxed are Mediation Fees and Expenses, i.e. the costs and fees of the mediator.

By the way, I was at the Florida Supreme Court ADR Rules and Policy Committee meeting last week which is why no postings were made Wednesday through Friday last week. This is a marvelous committee and I’m honored to be a member!

To email me, click Perry S. Itkin.

“I Didn’t Know What I Was Doing; Don’t Enforce the Agreement!”

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

A mediator shall:

(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 . . . . [Emphasis added.]

Mediators sure have a lot to think about!

What do you think of these circumstances in light of the above rule? After a full day of mediation, a party who was also an attorney [represented by counsel], reached a settlement agreement which was signed by all parties and their counsel. Immediately following the mediation, the attorney-party drove himself to a hospital where he was admitted and diagnosed with a ruptured cerebral aneurysm, sub-arachnoid hemorrhage, and stroke. He underwent surgery the next day and was placed in the intensive care unit for approximately one month prior to his eventual discharge from the hospital. He claims to have no recollection of the events preceding his hospitalization.

He resisted a motion to enforce the agreement and sought rescission on the ground that he was not mentally competent to enter into a contract at the time the agreement was negotiated and signed. The court in In Re: Raines v. Flinn, 2005 U.S. App. LEXIS 24025 [Cir. 9th 2005] affirmed the order enforcing the agreement. Whaaat?!? Well, you’ll have to read part of the opinion to find out why.

To email me, click Perry S. Itkin.

Adversarial Mindsets Don’t Work Well In Mediation – And Then Some!

Some disputes are not suitable for mediation; likewise, some people are not suitable. Did you ever wonder whether any surveys were conducted which included the adversarial mindset and the consequences on performance in mediation? Okay, just in case you did – wonder no more! According to this article in the Law Gazette, a publication of the United Kingdom’s Law Society, a study conducted by the Centre for Effective Dispute Resolution [CEDR] disclosed that 20% of the lawyers participating in mediation were rated as having performed less than adequately. By the way, this was part of a survey of more than 400 mediators.

What factors do you think led to this outcome? Well, you’ll have to read this interesting piece to learn about the conclusions drawn from the survey.

In addition, here’s the Executive Summary if you’d like more details about the mediator audit. “The audit covered attitudes of civil and commercial mediators to a range of issues concerning their personal background, mediation practice and experience, court-annexed mediation, training standards and professional regulation, and the critical factors in achieving successful mediation.”

To email me, click Perry S. Itkin.

Happy Birthday to a One Year Old!

One year ago today Florida Mediator was launched [that might be blogspeak for born - just guessing]. Happy Birthday! Thanks to everyone for your enthusiastic support and thoughtful compliments. I am deeply grateful.

To email me, click Perry S. Itkin.

A Perfect Example!

Florida Rules of Civil Procedure, Rule 1.730. Completion of Mediation, provides:

(a) No Agreement. If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. [Emphasis added.]

According to this article in the Pine Bluff Commercial, the obstacle to resolution of this dispute over unpaid jail fees involved how the trial judge would define a particular phrase which was central to the disputing parties. The judge’s ruling came after 20 hours of mediation spanning a 2 day period and both sides find it helpful in facilitating the possibility of settlement.

To email me, click Perry S. Itkin.

Judicial Exhortation To Settle – Will It Work?

Along the same lines as seen in today’s post A Perfect Example!, is a federal court judge’s exhortation [and an inclination as to how he might rule on a particular point] to the disputing parties to reach a settlement in this highly publicized environmental conflict reported in this article in the Palm Beach Post followed 2 days later by this article in the South Florida Sun-Sentinel. Facing the parties is a tight timeline and other litigation.

Take a look at these articles and learn how the judge and the parties view the entire matter of settlement. Of interest is how the judge empowers the parties in recognizing their creativity contrasted with the court’s limitations. Any insights for the mediator?

To email me, click Perry S. Itkin.

Senior Judges as Mediators – New Rules!

In its opinion in In Re: Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 2005 Fla. LEXIS 2123 [Fla. 2005], the Florida Supreme Court has approved the majority of the recommendations of the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy along with a commendation to the Committee that its work represents a substantial contribution to the improvement of the administration of justice in Florida. The innovative recommendations are designed to avoid the appearance of impropriety and safeguard against potential ethical violations resulting from dual service as a senior judge and a mediator.

The following Florida Rules are amended:

Civil Procedure
Judicial Administration
Juvenile Procedure
Certified and Court-Appointed Mediators
Family Law Rules of Procedure
Code of Judicial Conduct

Except for Judicial Administration, the effective date of the amendments is January 1, 2006.

To email me, click Perry S. Itkin.

Mediator Ethics Advisory Committee Opinion 2005-001 - Now Online

The Mediator Ethics Advisory Committee Opinion 2005-001 is available online. Here’s the summary:

The Homeowners’ Association [HOA] Program billing procedures do not present any per se ethical concerns related to fees, expenses, or impartiality for a Florida Supreme Court certified mediator who participates in this program so long as the fees and their allocation between the parties are disclosed in advance of the mediation to the parties or their counsel, and the parties are given the option of agreeing to that arrangement or negotiating a different one.

Remember, a mediator is required to give parties or their counsel a written explanation of fees and costs prior to mediation. Florida Rules for Certified and Court-Appointed Mediators, Rule 10.380(c) Fees and Expenses; Written Explanation.

Remember, too, that as with any other ethical matter, a mediator should decline to mediate if the mediator believes the facts and circumstances might impair the mediator’s ability to follow the ethical rules.

To email me, click Perry S. Itkin.

The Resolution Report - October, 2005 Issue - Now Online

The October, 2005 issue of the Dispute Resolution Center’s quarterly publication, The Resolution Report, is now online. Be sure to read my Case and Comment article for some thought provoking appellate opinions!

To email me, click Perry S. Itkin.

“Yes You Did! No I Didn’t!”

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

To email me, click Perry S. Itkin.

Hurricane Wilma Knockout!

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

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

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

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

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

To email me, click Perry S. Itkin.

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

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

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

To email me, click Perry S. Itkin.

Whaaat?!? – A Free Lunch?!?

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

And you thought I was kidding!

To email me, click Perry S. Itkin.

Sometimes Gift Giving Is Not a Good Idea!

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

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

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

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

To email me, click Perry S. Itkin.

Reprehensible Negotiation Tactics Just Don’t Cut It!

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

To email me, click Perry S. Itkin.

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

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

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

To email me, click Perry S. Itkin.