Mediator On A Tightrope – MEAC Opinion 2006-003!

Hmmm!!! Florida Rule of Civil Procedure 1.720(b) provides in pertinent part:

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. . . .[U]nless stipulated by the parties or changed by order of the court, a party is deemed to appear at a mediation conference if the following persons are physically present:

(1) The party or its representative having full authority to settle without further consultation.
(2) The party’s counsel of record, if any.
(3) 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.
[Emphasis added.]

So, what if, during the mediation process, the mediator learns that a party or representative doesn’t have “full authority” – can the mediator report that to the court? [Not so fast!] Should the mediator be able to report that to the court?

What about confidentiality and Florida Rules for Certified and Court-Appointed Mediators, Rule 10.360 and Florida’s Mediation Confidentiality and Privilege Act, F.S. 44.405 [Confidentiality; privilege; exceptions.]?!??!? Is lack of authority to settle one of the exceptions to confidentiality set forth in the Rule or statute? [Nope!]

Just what can/should the mediator report to the court? Read this interesting MEAC Opinion to figure out how to think about [after all, it is a dilemma, i.e. mediator accountability to the court Florida Rules for Certified and Court-Appointed Mediators, Rule 10.500] and how to address this situation [or not]!

Do you see any problems here? Seriously, please let me know.

To email me, click Perry S. Itkin.

MEAC 2005-007 Now Online!

Here’s a summary of MEAC Opinion 2005-007 which addresses the scheduling of a mediation conference, rescheduling a mediation conference, and party nonappearance:

1. If a party is requesting that the mediation be rescheduled for “good cause,” the mediation should be rescheduled to a mutually convenient time consistent with Florida Rules for Certified and Court-Appointed Mediators, Rule 10.330(a). If the party is objecting to attending mediation, the mediator cannot compel attendance, however, the party should be advised that pursuant to Florida Family Law Rules of Procedure, Rule 12.741(b)(2), the party may be subject to sanctions by the court for “nonappearance.”

2. A report to the court regarding nonappearance should not include any reason for the nonappearance.

3. A date for mediation may be set without the advance agreement of all parties, but then any party would be permitted to request that it be rescheduled.

4. A mediator may report non-appearance at a mediation if the mediator gave the non-appearing party due notice of the date and time for the mediation session and good cause was not shown for rescheduling.

Although the question raised in this Opinion was in the context of a family mediation, the lessons are applicable in other mediations. For example, take a look at Florida Rules of Civil Procedure, Rule 1.720.

This is a very interesting and informative Opinion and is well worth reading!

To email me, click Perry S. Itkin.

Mediation Without Borders

Here’s a splendid letter from Ken Cloke and Robert Creo to all Mediators!

“We are thrilled to announce the creation of Mediators Without Borders (MWOB). MWOB is a non-profit provider of pro bono conflict resolution capacity building within post-conflict communities.

A key goal of MWOB is to develop indigenous skills for group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.

The concept is for teams of volunteer mediators to conduct skill-building workshops consistent with the norms, values, and culture of the locale.

The Mission is to increase the capacity of hostile communities to prevent, resolve, and recover from violent conflict. An array of conflict alternatives can be explored by strategic integration into the political, economic, and social institutions. The same team would volunteer for between 1 – 3 weeks per year, over a number of years in the same country, to build sustainable initiatives and to develop local peacemakers and peacekeepers.

The current business model is to partner with existing NGO’s and ADR entities to provide experienced mediators as trainers and consultants to complement and expand the conflict resolution capacity of already funded peace projects.

Ken Cloke is the key founder and leader of Mediators Without Borders. He has assembled a dedicated team of mediators to implement this vision of MWOB.

The entity has been legally established and is being housed in Pittsburgh with office space and other support donated by Bob Creo, one of the incorporators of MWOB.

MWOB needs funds for staffing and administrative overhead to effectively implement the MWOB mission. There is an administrative plan to share the services of Ms. Anjali Soi, Executive Director of Mesites Foundation, also headquartered in Pittsburgh, with MWOB and hire a part-time administrative assistant.

The business plan provides for an annual administrative budget for cash flow purposes estimated at a modest $3,000 per month in the first year of operation. We expect to be filing for grants for the 2007 – 2008 grant cycle, but need to raise funds from the mediation community to implement an effective infrastructure. Ken and Bob, together with the Steering Committee of: Nan Walker Burnett, Lynn H. Cole, Sandi DiMola, Helen Dekovachich, Richard DeWitt, Erica Ariel Fox, Joan Goldsmith, C.J. Larkin, and Rachel Wohl, seek your participation as a Charter Mediator Member of MWOB.

This requires an annual dues commitment of at least $1 per day for an initial two year pledge period.

Only Member Mediators are permitted to volunteer to intervene abroad in specific projects. Over the next several months, we will be creating the web site, which will provide updated information as this project rapidly moves forward. We also seek networking assistance from the Mediator Members to identify potential partners, projects, and indigenous peacekeepers.

Please consider becoming a Mediator Member of a Supportor by completing the Dues Pledge Form on the web page link . . . and returning it with payment promptly.

Please feel free to contact any of the Steering Committee or Anjali Soi at anjalisoi@gmail.com or 412.441.1151 for additional information.

Please pass this letter and information onto any other interested mediators. I hope you can join us on this exciting and worthwhile endeavor.

Ken Cloke, kcloke@aol.com and Bob Creo, robertacreo@cs.com”

To email me, click Perry S. Itkin.

Nat Fein – Mediator!

Who?!? This 1949 Pulitzer Prize winning photograph of Babe Ruth [“Babe Bows Out” taken June 13, 1948] is a fabulous picture – why – because it was taken from the back instead of from the front like thousands of other pictures! The photographer, Nat Fein, thought outside the box – thought and saw differently than others – i.e. from different angles [well, he could have been a mediator – don’t you think?].

According to this article in The National Law Journal, civil actions ending in creative settlements that do more than put money into the pockets of plaintiffs and their lawyers are unusual BUT [and you know what that means] they are increasing – try charitable donations, tax breaks, defendants instituting safety programs, apologies – just to name a few imaginative ideas for settlements. Hey, how about that?!!? The power of self-determination – simply amazing!

It’s not always just about the money! Really – it’s not!

To email me, click Perry S. Itkin.

“Go Directly To Jail; Do Not Pass Go; Do Not Collect $200.00!”

What does The Monopoly Game have to do with mediation? Nothing actually, although the case of Higgins v. Higgins, 2006 Fla. App. LEXIS 20867 [Fla. 2nd DCA 2006] is illustrative of the relationship between being jailed by a trial judge who later orders the same party to mediation [on the very same day, no less]!

The former wife in this post divorce case was held in direct criminal contempt of court during a hearing, summarily sentenced to jail for 6 months, actually jailed and then returned to court later the same day when the same judge ordered her and her former husband to mediation in the office of the court mediation program. Any problems that you see so far?

Okay, how about prior to ordering the parties [who were pro se] to mediation the judge had announced to the former wife that her attempt to relocate with the parties’ minor child was barred by court order [which it wasn’t] and unlawful and that was one of the reasons for the contempt conviction? It’s not getting better, is it?!?

As a result of the mediation, the parties signed a document entitled “Order” as did the “Mediator[,] Preparer of Order of Court.” [Mediators as “Guardians of the Process” - o.k.; mediators as “Agents of Reality” - o.k.; but mediators as “Preparers of Order of Court” - not o.k.] This order transferred custody of the minor child from the mother to the father. You guessed it, the former wife/mother appealed the order of contempt and the order modifying custody.

How significant were the “highly coercive circumstances”, devised by the trial judge, to the appellate court which reversed the trial judge. The wheels of justice don’t move so quickly [what else is new?!?] – the hearing was held in January, 2006 and this appellate decision was issued in December, 2006.

To email me, click Perry S. Itkin.

“Good Luck” Mediation

Whaaat?!!?? Well, according to this article in the Livingston Daily Press and Argus, a trial judge is alleged to have prevented lawyers in a divorce case from selecting their own mediator because the judge “was not having good luck” with the named mediator. Hmmmm!!! There’s more too and you’ll have to read the article. If the allegations are true, isn’t this outrageous?!? What about party self-determination for starters? Anyway, you be the judge [or not]!

To email me, click Perry S. Itkin.

“Come On Down!”

Okay – this isn’t The Price is Right although the price really is right as you will see; plus you don’t have to be from Florida to participate. Of course, if you are from Florida you already know you can submit workshop proposals – and please do.

The Dispute Resolution Center is now accepting workshop proposals for its 16th Annual Conference for Mediators and Arbitrators, August 23 - 25, 2007 in Orlando, Florida.

The goal of the Conference is to provide educational opportunities that will be of interest and benefit to professionals involved in the field of conflict resolution. Workshop proposals should be designed to enhance knowledge and skill levels for the seasoned practitioner.

Presenters selected for participation will be given a reduced Conference registration fee of $50.

Complete the Call for Proposals application and mail, email or fax it to the Dispute Resolution Center postmarked on or before February 1, 2007 [it’s not that far away]. A separate application must be submitted for each workshop. If you have questions, email Kimberly Kosch at koschk@flcourts.org.

A change from prior conferences is a revision in all individual workshops which will be 2.0 CME credits (as compared to 1.8 hours previously). This change will allow mediators to complete their 2 hour CME requirements in one workshop rather than having to take one plus workshops to get their 2.0 hours.

As in the past, the conference will be held at the Rosen Centre Hotel, 9840 International Drive, Orlando, Florida 32819 and the DRC Lodging Rate is $99.00. Here’s the number to call to make a reservation 1-800-204-7234.

To email me, click Perry S. Itkin.

We're Still Waiting!

Here’s an update on my prior post on the status of the requirements to become a Circuit Court Mediator certified by the Florida Supreme Court.

The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy has submitted to the Florida Supreme Court proposed amendments to the Florida Rules for Certified and Court Appointed Mediators. The committee proposes new rule 10.105, Point System Categories, and amendments to rule 10.100, Certification Requirements, that incorporate the recently adopted basic point requirements for certification as county, family, circuit, and dependency mediators. Essentially, the point system was removed from the Court’s Administrative Order and incorporated into the Rules.

Consistent with the Court’s prior opinion, the proposed amendments to rule 10.100(d), Circuit Court Mediators, include the requirement of Florida Bar membership that was retained by the Court until it could consider requested input from The Florida Bar on the requirement. The committee continues to urge the removal of the Florida Bar membership requirement. The Bar takes the position that the requirement of Florida Bar membership should be retained for circuit court mediators, but that the applicant also should be required to have been a member of The Florida Bar or other bar jurisdiction, in good standing, for the five years immediately preceding an application.

The Court invites all interested persons to comment on the committee's proposed amendments.

Please submit your comments.

To email me, click Perry S. Itkin.

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.