Mediating Colors – Black and White

Okay, not exactly – however, that seems to be the challenge in yet another governmental dispute. This one is between the Clerk of Court and the Escambia County Commission [wait a minute, doesn’t this sound familiar?] according to this article in the Pensacola News Journal. The chief deputy clerk pondered, “I don’t know how you can mediate a black-and-white issue.” And now, here comes the magic of mediation! “Music, maestro, please!”

To email me, click Perry S. Itkin.

“Fishbowl Mediation”

Whoa! Wait a minute! According to this article in the Naples Daily News a long running power struggle between the Clerk of Court in Collier County, Florida and the Collier County Commissioners might be mediated [so far, so good]. The attorneys for Collier County have asked the Clerk of Courts to mediate in an effort to settle several lawsuits between the two government entities. [A good move!]

The Clerk agreed [another good move] but [and you know what that means] would do so on two conditions [here they come!]: [1] He wants the mediation sessions to be open to the public and [2] he wants all five county commissioners to take part in the mediation [Hmmm! What about the Government in the Sunshine Law?!?]. I know, that’s why condition number 1 is in play. However, Florida also has a Government in the Shade Law too [really; I’m not kidding here].

Florida requires governmental entities to conduct their business at meetings open to the public, i.e. “in the sunshine”. F. S. 286.011. However, the legislature created an exception to the sunshine law which permitted any governmental agency, its chief executive and attorney to meet in private [“Government in the Shade”] to discuss settlement negotiations or strategy. Take a look at F.S. 286.011(8) to see how confidentiality in mediation can be synchronized with Government in the Sunshine and the procedures to be followed.

After reading the article, what kind of protocols could be developed to address the concerns expressed by both sides [it can be done, you know]?

By the way, is what the Clerk of Courts suggesting really mediation or is it some other ADR process?

To email me, click Perry S. Itkin.

The Other Side Of The Coin

Here’s an article in The Oregonian about police officers in Hillsboro, Oregon training as mediators and here’s another article about types of disputes that police officers might mediate.

What’s in your wallet? Only kidding; I thought these were nice accompaniments to the earlier post about mediating complaints against police officers. Hmmm – maybe police officers trained as mediators will reduce the number of complaints filed against them by civilians [an unintended consequence – or not]!

To email me, click Perry S. Itkin.

“I Can’t Get No Satisfaction!”

With the exception of the title of their 1965 hit song, The Rolling Stones have nothing to do with this.

What if a civilian could get satisfaction in resolving a complaint against a law enforcement officer? In the early 1990’s, at a time when New York City was rife with police scandals, the Civilian Complaint Review Board was created so that accusations against police officers could be handled by an independent agency. Cases would be investigated and then sent to the full board, which would recommend punishment when wrongdoing was found.

Guess what alternative was included in the enabling law? You guessed it – mediation! One of the reasons for incorporating mediation was to give the civilian the chance to tell the officer why they were so upset with what the officer said or did and to provide the opportunity to the civilian to ask questions of the officer. [Sounds like a good idea to me!] There are criteria for the types of cases that are suitable for this program.

The New York Times has an excellent article [free subscription required – it’s worth it!] about the program which has drawn national and international attention.

How about something like this in your community?

To email me, click Perry S. Itkin.

“I’m Having A Really ‘Bad Hair’ Day!”

Picture this – you’re the mediator [ok, you knew that was coming]. During the mediation you discern that one of the parties is, well – stoned! What do you do? This is not as far fetched as you might think – take a look at this article in the New Jersey Law Journal [ok, it wasn’t a mediation but it could happen, right?!?].

One of the learning objectives in our training programs is to identify appropriate techniques for handling difficult situations [of which, I suggest, this would be one] or to identify appropriate courses of action when confronted with substance abuse during the mediation session [community resources and referrals, anyone?].

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

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.

Which option would you choose? Would you do anything else? Who are you going to call – or not?!?

So, what if it’s not a party who presents the difficult situation [or substance abuse], but rather the party’s lawyer as was reported here on Court TV News? Here’s a clue as to the facts: “I don't think you can tell a straight story because you are intoxicated,” said the trial judge to the lawyer. [You can actually watch a video of the hearing and if you do, note the exceptional demeanor of the judge.]

Go figure!

To email me, click Perry S. Itkin.

Dependency Mediation Certification Training

You might be interested in this! A Dependency Mediation Certification Training program is being offered by David A. Wolfson, Primary Trainer, from February 7 – 11, 2007 in Tallahassee, Florida.

The cost for the training is $975.00, but a special discount rate for early registration of $925.00 will apply until December 1, 2006.

Included with the training package [at no additional charge!] is the Dependency Module of Nutshell Mediation Office, a software program which, among other things, prepares all documentation necessary for dependency mediation.

If you have any questions about the program or to obtain registration information and a registration form, you can email David A. Wolfson by clicking here.

To email me, click Perry S. Itkin.

What Kind Of Jury Is This?

Do you think it’s a jury of your peers? Yes and . . . . It’s actually a group of Small Claims Mediators in Leon County [Tallahassee], Florida – see, they really are a jury of your “mediator peers!” Here’s one article and here’s another [nice to see my friends David Wolfson – the ADR Director for the 2nd Judicial Circuit, and Mark Palmquist, Mediation Coordinator, given recognition for their dedication and good work] from the Tallahassee Democrat about the Small Claims program and contributions that mediators make to the judicial system.

To email me, click Perry S. Itkin.

Desperate Mediation

O.K., not really! What about mediating “Desperate Housewives” scenarios, though? It can be done as is reported this article in the Arizona Daily Star. Do you think the scriptwriters are mediators too?!?

To email me, click Perry S. Itkin.

Is Duct Tape In Your Mediator’s Toolbox?

Have you ever been in a mediation where one of the mediation participants was verbally attacking another mediation participant [or even you the mediator]? Among the techniques we learn in mediation training is what to do in those instances. Take a look at the First District Court of Appeal Order to Show Cause in Thomas v. Patton, et al., 2006 Fla. App. LEXIS 15403 [Fla. 1st DCA 2006] to see how the judges addressed that type of conduct and how unimpressive it was to the appellate court.

This defamation suit was based on how the defendants reported the circumstances surrounding a guardianship. The trial court entered summary judgment in the defendants’ favor and the plaintiff appealed. The appellate court affirmed the summary judgment and sanctioned the appellant’s attorneys for the language they used in their initial and reply briefs.

Before you read the order [oops, too late!], try to figure out how the following terms were used:

Baloney
Fraud on the court
Twilight Zone Doctors
Internet freaks
Internet screwballs
Liars
Internet lynch mob
Elevating porno queens to the level of supreme court judges
Star Chamber proceeding
Poison pen letter

The court held that the arguments presented on appeal were, on their merits, frivolous, and awarded the appellees attorney’s fees for the appeal under F.S. 57.105.

By the way, just in case you are interested you can watch a video of the oral argument here.

To email me, click Perry S. Itkin.

Cyberweek 2006

The University of Massachusetts’ Center for Information Technology and Dispute Resolution and the InternetBar.org are offering their annual all-online [and totally free] Cyberweek conference to be held September 25 - 29, 2006. Cyberweek 2006: Shaping the Future of ODR and Online Justice will consist of many different kinds of content related to the field of online dispute resolution, from Skypecasts to meetings in virtual worlds to Podcasts to discussion forums and more.

Last year, there were several hundred participants from over forty countries.

Here’s the schedule of events.

You can register here. If you have any questions, you can email The Center.

To email me, click Perry S. Itkin.

Mediating With M&M’s

According to this article from ABC News, rapper Eminem and his wife Kimberley Mathers will be mediating issues stemming from their prenuptial agreement. How would you treat celebrities if they are parties in one of your mediations? Could you remain impartial and neutral? Would you keep an originally signed mediation agreement or an originally signed confidentiality agreement? Just food [or M&M’s] for thought – sorry, I couldn’t resist that one!

To email me, click Perry S. Itkin.

Mediation Sale!

According to this news release, the NASD announced its annual Mediation Settlement Month will take place in October and will offer incentives and special programs designed to promote mediation. By reducing rates and hosting these educational events, the NASD hopes to encourage parties to try mediation for the first time and to reinforce its value and effectiveness to those who have benefited from it in the past.

To email me, click Perry S. Itkin.

“I Speak Or Understand The Language!”

Although this is not arithmetic [you remember that term, right?!?], there are pluses and minuses here. The Florida Supreme Court decided in the case of In Re: Standard Jury Instructions in Criminal and Civil Cases, 31 Fla. L. Weekly S 581 [Fla. 2006] that jurors should be instructed they cannot use their own knowledge of foreign languages to decide whether a courtroom translation is correct if all parties to a case agree on its accuracy.

The court also unanimously agreed that jurors should be instructed that if they question the accuracy of an interpretation they should immediately bring the matter to the judge’s attention by raising a hand and not to comment about the matter in the presence of other jurors.

The justices voted [not unanimously], however, to seek further study before deciding whether that restriction also should apply if the parties disagree on the accuracy of a transcribed translation.

Transform the above scenarios to a mediation conference – you are a bi-lingual or tri-lingual mediator – now, how would you address these situations if they occur in mediation?

To email me, click Perry S. Itkin.

The Hazards of Cultural Interpretation

The 4th District Court of Appeal, in Basha v. Dorelien, 2006 Fla. App. LEXIS 15468 [Fla. 4th DCA 2006], illustrates the hazards of making cultural interpretations. The plaintiff argues on appeal that the trial judge erred in granting a motion for summary judgment because the motion was facially insufficient, genuine issues of material fact existed, and the court improperly based its decision on an issue not raised in the motion [imposing a Haitian cultural interpretation on the words employed in an e-mail]. The appellate court agreed.

A plain reading of the correspondence revealed that the defendants were well educated and fluent in English. The trial judge on his own imposed a Haitian cultural interpretation of the language employed in the communications between the parties. This was not an issue raised by the defendants’ motion for summary judgment. As plaintiff’s counsel argued at the hearing, had the motion raised the issue, the plaintiff could have countered with an expert on Haitian culture. [What is the meaning of the word “we” in a cultural context?]

Very interesting! So, is it sufficient to “speak the language” or do we need cultural experts in mediation also?

To email me, click Perry S. Itkin.

The Answer: We Don’t Know Yet!

The Question [do you feel a little like Johnny Carson’s Carnac The Magnificent?]: Am I still required to be a Florida lawyer or retired trial judge to be a Circuit Court Mediator???

On May 11, 2006 the Florida Supreme Court issued its opinion in In Re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 931 So.2d 877 [Fla. 2006] and adopted the new point system for certification as follows:

“We support the new point system in concept and can foresee no drawback to moving to a more practical and non-profession-based point system for certified county court, family, and dependency mediators. However, we are hesitant, at this time, without input from The Florida Bar, to remove the current requirement that a certified circuit court mediator must be a member of The Florida Bar or a retired trial judge from any United States jurisdiction. Therefore, we have modified the point requirements for circuit court mediators to retain this requirement for the time being, pending input from The Florida Bar.”

You can read The Florida Bar’s input here and the ADR Rules and Policy Committee’s response [filed Friday, September 8, 2006].

Now, we wait!

To email me, click Perry S. Itkin.

September 11, 2001

We Will Always Remember!

Nerf Mediation?

Whaaat?!? According to this article in the Wisconsin State Journal some mediators in Wisconsin let clients shoot each other with foam-rubber Nerf weapons as a form of venting. Is this a good idea?

Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.420(b), Conduct of Mediation, Adjournment or Termination provides that a mediator shall [no wiggle room here]

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

The Nerf N-Strike Maverick Blaster comes with this warning: “CAUTION: Do not aim at eyes or face. To avoid injury, use only darts designed for this product. Do not modify darts or dart blaster.”

In 2002 during a court–ordered probate mediation, a brother shot his sister to death in front of his wife, an attorney–mediator and the attorneys for the two sides. He fled the office and then killed himself, according to police reports. This article in New York Lawyer [registration required] points out that the shooting in the conference room of a Boca Raton law firm has led to a premises liability lawsuit against the firm that could have important ramifications for attorney–client privilege in Florida [what about mediator’s premises liability had this occurred in a mediator’s office?]. You can read about the privilege aspect of the case in Hodgson Russ LLP v. Trube, et al., 867 So. 2d 1246 [Fla. 4th DCA 2004]. Note that although the opinion refers to a scheduled deposition, it was actually a mediation conference.

Would you consider using Nerf weapons in mediation in Florida? I don’t think so! There are better [and safer] ways for parties to vent; but, you knew that!

To email me, click Perry S. Itkin.

Charles Darwin – Mediator!

Well, I don’t know about that although I bet he would have been a good communicator! The Expression of the Emotions in Man and Animals is a book by the British naturalist Charles Darwin published in 1872, on how animals and humans express and signal to others their emotions. It was the beginning of scientific research on nonverbal communication.

The experts reveal that a substantial portion of our communication is nonverbal – handshakes, facial expressions, gestures, tone of voice, and hairstyle [for those of you who know me, please stop laughing!]. According to this article in About Psychology, research has identified several different types of nonverbal communication. Among them are:

1. Facial expression
2. Gestures
3. Paralinguistics [“Don’t use that tone of voice with me!”]
4. Body language and posture
5. Proxemics [personal space]
6. Eye gaze
7. Haptics [you know, “Reach out and touch someone!”]
8. Appearance

What others can you think of?

Speaking of handshakes, how about hugging as nonverbal communication? Take a look at this article in The Poughkeepsie Journal for an interesting commentary on the personal space invasion.

To email me, click Perry S. Itkin.

“Make Up Your Mind!”

Did you ever wonder what the ingredients of the “right decision” are? Okay . . . well, just in case you did you’ll find some answers in this interview with Luda Kopeikina in MITSloan Management Review. For starters [and you should read the interview], here are three elements:

1. Identify the best decision-making process [how about mediation?!?].

2. Analyze the best data you can find.

3. Aim for a state of clarity – reflect on the problem until you feel absolutely clear and aligned with the particular decision you make.

Do you think mediation parties incorporate these elements “in reaching informed and voluntary decisions” [does this sound at all familiar? Think self-determination.]? This should ring a bell with you. Remember Florida’s Rules for Certified and Court-Appointed Mediators, Rule 10.310(a) Self-Determination:

(a) Decision-making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination. [Emphasis added.]

Whoa! It’s our responsibility to preserve party self-determination; I believe we need to wonder about the above ingredients and the other concepts revealed in the interview. Don’t you?

To email me, click Perry S. Itkin.

Mediating Between Urinals!

Will wonders [and mediation] never cease and – wait – it’s not what you may be thinking!!! According to this article from KYW Newsradio in Philadelphia, plans for the new Comcast Center tower to be built in Center City call for waterless urinals. The urinals save water and they also use less plumbing than the traditional urinals [translation, less work for plumbers]. A city hall source says the plumbers union is “dragging its feet” as the developer seeks the necessary change to the city building code to allow the new devices. A state senator has been “mediating.”

To email me, click Perry S. Itkin.