Arbitration & Mediation

The Florida Supreme Court Residential Mortgage Foreclosure Task Force Issues Final Report!

Posted on August 17, 2009
I've been waiting until this moment to provide you with the Final Report of the Florida Supreme Court's Residential Mortgage Foreclosure Task Force [to which I had the honor and privilege of having been appointed by Chief Justice Peggy A. Quince]. The Chief Justice established the task force in March, 2009 by Administrative Order in the wake of dramatic increases in residential mortgage foreclosure case filings...

2009 MEAC Opinions [and Others] - Online!

Posted on May 14, 2009
A new addition to my website Mediation Training Center is the menu link Ethics Opinions.I've included a brief overview of the Mediator Ethics Advisory Committee [MEAC] and added all of the MEAC Opinions from 2004 through 2008, PLUS I've have included the first two 2009 MEAC Opinions which have just been issued [you're among the very first to know]...

?Have You Taken Your Meds Today??

Posted on August 28, 2008
?What drugs are you on?? Is this a good question for a mediator to ask a party? No. Okay, how about ?are you juiced?? No. Okay, how about ?what?s in your medicine cabinet?? Not much better. Should mediators engage in the practice of asking parties about their medications and is this something to be concerned about?Actually, yes...

Mediation & Chicken Soup?

Posted on August 26, 2008
What do mediation and chicken soup have in common? They?re both good for you!According to a recent article in The New York Times, ?Study Finds Settling Is Better Than Going To Trial,? a study to be published in the September issue of the Journal of Empirical Legal Studies has found that most of the plaintiffs who rejected a settlement offer and went to trial received less money than if they had accepted the offer...

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You Don?t Just RSVP [Or Not] To A Court Order ? You Comply Or . . . !

Posted on August 17, 2008
In Mojzsik v. Estrada, 983 So.2d 699 [Fla. 5th DCA 2008], Appellee?s attorney sought relief from the Fifth District Court of Appeal?s Order to Show Cause for failure, without good cause, to appear at a court-ordered appellate mediation. Apparently, he failed to appear at hearings without notice, failed to file the court ordered mediation questionnaire, delayed payment of fees awarded by the court, and did not appear at the show cause hearing even after his motion to appear by phone was denied...

You Want How Many Bites At The Apple!!!! You?re Kidding, Right?!?

Posted on August 17, 2008
One ? okay. Two ? not so fast! Three ? that?s crossing the line. Well, how about ten?!?In Ayala v. Gonzalez, 33 Fla. L. Weekly D336 [Fla. 5th DCA 2008] and in Ayala v. Gonzalez, 33 Fla. L. Weekly D1230 [Fla. 5th DCA 2008][Clarification of Opinion and Denial of Motion for Rehearing], sanctions against the former wife and her attorney in a divorce case in the form of an award of appellate attorney fees to former husband were warranted according to the Fifth District Court of Appeal...

Soon It Costs More!

Posted on August 17, 2008
On June 30, 2008 Florida Supreme Court Chief Justice R. Fred Lewis, as one of his final acts as Chief Justice, entered Administrative Order AOSC08-23 In Re: Procedures Governing Certification of Mediators.The Administrative Order includes several important substantive changes including:New language clarifying mentorship timing: ?A trainee shall not fulfill any of the mentorship requirements before beginning the certified mediation training program which will be used for the pending application...

Small Claims Rules? Amendment Impacts Mediation + A Question

Posted on June 20, 2008
The Florida Supreme Court, in In Re: Amendments To Florida Small Claims Rule 7.090, Case No. SC07-1724 [Fla. 2008] amended Florida?s Small Claims Rules regarding notification to the parties that mediation may occur at the pretrial conference and that sanctions may be imposed against a party whose representative fails to appear with ?full authority to settle?...

?Would Have, But . . .? ?Should Have, But . . .? ?Could Have, But . . .? ? ?Didn?t!?

Posted on June 15, 2008
In Leff and Physicians Financial Consultants Corporation v. Ecker, M.D., 972 So.2d 965 [Fla. 3rd DCA 2007], the plaintiff went into the mediation conference without a clear picture of what the insurance policy limits were. Notwithstanding this limited knowledge, plaintiff chose to go ahead with the mediation and entered into an agreement at the end of mediation...

Hybrid Is Not Just A Motor Vehicle!

Posted on April 27, 2008
Are you a Med-Arbitrator? [Why?] Would you serve in the dual capacity of mediator and arbitrator in the same matter? [Why?] Or, to misquote Harry Callahan ?Do you feel lucky?? [You know, as in Clint Eastwood?s movie Dirty Harry].The hybrid ADR process med-arb was recently recognized by the Ontario Court of Appeal case Marchese v...

Brenda Mae Tarpley?s Negotiation Technique and Sanctions!

Posted on April 21, 2008
Who?!? Okay, how about Brenda Lee [her real name is Brenda Mae Tarpley]? You remember her number one 1960?s hit ?I?m Sorry? ? please say yes! No, okay then how about remembering 1960 as the year Elvis was promoted to Sergeant in the U.S. Army and 2 months later was discharged and returned home...

An Immunity Booster!

Posted on April 20, 2008
Florida Statute 44.107 provides immunity for mediators and mediator trainees in court-ordered and noncourt-ordered mediations. In court-ordered mediations the mediator has ?judicial immunity in the same manner and to the same extent as a judge.? In noncourt-ordered mediations the mediator has a qualified ?immunity from liability arising from the performance of that person's duties while acting within the scope of the mediation function...

Warning ? A Kvetch Can Be Dangerous!

Posted on March 21, 2008
Do you have mediator professional liability insurance? If not, why not? If yes, well . . . .According to this article in the New Jersey Law Journal, the question could be posed another way: How angry do clients have to get before attorneys [substitute ?mediators?] must warn insurers a suit is possible?In the ongoing litigation in General Star National Insurance Co...

Florida Supreme Court Removes Bar Membership Requirement for Circuit Court Mediators!

Posted on November 20, 2007
Wow!!! On November 15th the Florida Supreme Court issued In Re: Petition Of The Alternative Dispute Resolution Rules And Policy Committee On Amendments To Florida Rules For Certified And Court-Appointed Mediators, 2007 Fla. LEXIS 2172 [Fla. 2007] in which it amended the Florida Rules for Certified and Court-Appointed Mediators to provide a true point-based mediator certification system by removing The Florida Bar membership requirement for certified Circuit Court Mediators!!!What a marvelous opportunity for those without legal training, as well as for those who are members of the bar in jurisdictions other than Florida, to become a certified Circuit Court Mediator!The Court also recognized that there may be situations where one party to a Circuit Court mediation may object to the appointment of a mediator who lacks legal training and if that occurs, the trial court must appoint a mediator who is also a member of The Florida Bar...

Mediation Math: Pressure To Go To Mediation + Ineffective Assistance of Counsel = Zero!

Posted on September 16, 2007
How about that?!? Take a look at D.B. v. W.J.P., 32 Fla. L. Weekly D 1737 [Fla. 5th DCA 2007]. This court ordered dependency mediation resulted in an agreement in which the paternal grandmother was given temporary custody of her grandchild. Before the court entered its order approving the agreement, the biological mother objected arguing [1] she was pressured into going to mediation and [2] that she had received incompetent legal advice...

Seriously ? We Need Your Help With This!

Posted on September 11, 2007
The Florida Supreme Court?s Committee on Alternative Dispute Resolution Rules and Policy is considering some options to address the issue created by the adoption of Florida?s ?Mediation Confidentiality and Privilege Act?, sections 44.401- 44.406, of Chapter 44, Florida Statutes, in relation to the reporting of a failure of a party to appear pursuant to court rules (See Rule 1...

The ?Emperor?s New Clothes? and Mediation!

Posted on September 11, 2007
Guido and Luigi Farabutto were the world?s first pre-suit mediators! Who, you ask, are they? These men were the tailors [swindlers, actually] made famous by Hans Christian Anderson and who made the Emperor?s ?new clothes? [pre-suit ? get it?!?] Okaaaaaaaay!?!Well, the Florida Legislature actually gave us some good ideas in the newly amended mandatory pre-suit mediation protocol for community association ? parcel owner disputes, F...

The Beatles: Ethical Mediators ? ?You Can?t Do That!?

Posted on August 30, 2007
The year was 1964 and The Beatles recorded You Can?t Do That as the B-side of the single Can?t Buy Me Love ? you remember both songs, right?!? Seems just like Yesterday ? sorry, I couldn?t resist!Anyway, have you ever been presented with the situation in mediation where one or both of the parties have brought [usually, unannounced] a non-party to the table ? of course you have! The party who brought this person says ?yes they?ll stay? and the other party says ?no? ? or, to put it another way, ?you say yes, I say no? or vice versa, ?you say goodbye and I say hello...

Concetta Rosa Maria Franconero ? Mediator!

Posted on July 01, 2007
Who?!? Okay, okay! How about this: Connie Francis ? Mediator! You remember her 1958 hit "Who?s Sorry Now?" [Please say yes!] The song actually was featured in the Marx Brothers? film A Night in Casablanca (1946) and has become generally associated with her due to the massive worldwide popularity of her version...

Do I Or Don?t I . . .

Posted on May 31, 2007
. . . routinely attach the mediated settlement agreement in a Circuit Civil case to the report I file with the Court?Hmmm?!?Okay, the answer is found in MEAC Opinion 2007-002 which provides, in summary, that ?it would not be appropriate to routinely attach the mediated settlement agreement to a circuit civil case in light of the requirements of rule 1...

The Lone Ranger ? Mediator!

Posted on May 30, 2007
A fiery horse with the speed of light, a cloud of dust and a hearty ?Hi-Yo Silver!? The Lone Ranger rides again! Return with us now to those Thrilling Days of Yesteryear!Remember this?!? [Please say yes!]Okay, okay, The Lone Ranger was not a mediator ? he could have been though, don?t you think? For example, he was the first to use the ?silver bullet? technique often used by mediators today...

Are You Comprehensible?

Posted on May 11, 2007
One of the learning objectives in mediation training is to develop an awareness that people differ in how they make decisions, how they process information, and how they communicate.U.S. Bankruptcy Judge Leif M. Clark (W.D. Tex.) entered an order captioned ?Order Denying Motion for Incomprehensibility? when he couldn?t figure out what the defendant was requesting...

?Where Have All The Flowers Gone??

Posted on April 15, 2007
Nope, I?m not referring to Pete Seeger?s song with the same name and made popular by The Kingston Trio, Peter, Paul and Mary and Marlene Dietrich ? what I really meant to say was [quoting from the song] ?When will they ever learn?? [You remember the lyrics, right?!? Please say yes!]According to the St...

?Yes, Virginia . . .?

Posted on April 14, 2007
Okay, I realize it?s a little early for Christmas, however, the Virginia Chapter of the Association for Conflict Resolution is celebrating its 10th anniversary in Fredericksburg, Virginia at its annual spring conference May 6 ? 7, 2007.Ray Lanier, President of the Association for Conflict Resolution will address ?State of the Field: What are the trends and challenges in the field of conflict resolution? How is ACR doing??Celebrate with them and participate in valuable networking and learning opportunities...

?But Judge, I Really Want To Mediate!?

Posted on April 09, 2007
Coastal Systems Development, Inc. v. Bunnell Foundation, Inc., 2007 Fla. App. LEXIS 4900 [Fla. 3rd DCA 2007] involved a consolidated appeal from the trial court?s non-final order denying a motion to compel mediation, for stay pending arbitration and to strike notice for trial, as well as the trial court?s non-final order denying a motion to compel arbitration...

?The Other Side Is Paying For Mediation ? Not Me!?

Posted on April 06, 2007
Never happened to you ? right?!? What can you properly report to the court? MEAC Opinion 2006-008 advises that ?The mediator may report the fact of nonpayment of mediation fees to the court.?In MEAC Opinion 95-001, MEAC advised that ?a mediator . . . is entitled to compensation at the time the services are rendered in accordance with the agreement of the parties or the Court order appointing the mediator...

Settle Or Go Directly To Jail!

Posted on April 04, 2007
No ? really ? this actually happened! According to this article from WMBB-TV News and this article from WJHG-TV News, the creator of ?Girls Gone Wild? was found in contempt by a Federal Court judge as a result of his conduct during mediation last month...

Mediating In The Dark!

Posted on April 04, 2007
Okay, not really in the dark ? but what about mediating for a very, very, very long, long session ? i.e. the ?marathon mediation? [start early ? stay late ? keep the light on for you]? Have you ever had that experience or heard an anecdote about one? Here?s a criminal case with an interesting parallel and lessons for us...

?It?s Clear To Me.? ?Me Too.?

Posted on March 28, 2007
This case from the Third District Court of Appeal is a good illustration of a peril for mediation in not having releases drafted at the mediation conference [or at least the mediator requesting that counsel bring proposed releases to mediation for discussion]...

The Mediator Who Wasn?t!

Posted on March 27, 2007
Huh?!? According to the Sun-Sentinel in this article, Rachel Otto who has been arrested for impersonating a police officer also has been accused of impersonating a mediator or lawyer or both.She has a pending court case involving allegations that she pretended to be an attorney and charged her 70 year old neighbor more than $10,000 for her ?mediation? in a car crash, according to police reports...

Be Careful Of What You Don?t Ask For!

Posted on March 24, 2007
If you don?t ask . . . well, you know!In Evanston Insurance Company v. Advanced Transportation Solutions, LLC, et al., 32 Fla. L. Weekly D 526 [Fla. 3rd DCA 2007], a personal injury action was settled at mediation between the plaintiffs and 3 different insurance carriers...

MEAC Opinions ? Now Online By Subject Matter!

Posted on March 20, 2007
Whoa! You?re really going to like this!Florida?s Dispute Resolution Center has now made available online, Mediator Ethics Advisory Committee [MEAC] opinion summaries [with links to all the opinions themselves] from 1994 to 2007 organized by subject matter...

Mediation Survives!

Posted on March 16, 2007
In The Auchter Co. v. Zagloul, 2007 Fla. App. LEXIS 3292 [Fla. 1st DCA 2007] the First District Court of Appeal reversed a trial court?s order denying Appellant?s Motion to Dismiss and/or Compel Mediation and/or Arbitration and Stay Action filed in response to a complaint stating causes of action based on a standard American Institute of Architects [AIA] contract between Appellant [as the contractor] and Appellee [as the owner] to build a house...

More Excellent Florida ADR Reference Materials On-line!

Posted on March 14, 2007
Really ? it?s true! The Florida Dispute Resolution Center has put its 2006 Resource Handbook online as well as its 2005 Compendium.The ADR Resource Handbook contains Florida ADR Statutes, Procedural Rules: Mediation & Arbitration, Rules for Certified & Court Appointed Mediators, Rules for Court Appointed Arbitrators, Mediation Training Programs Standards & Procedures, and the current Mediator Certification Administrative Order...

Talented Mediators & Salt ? A Commonality?

Posted on March 13, 2007
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.370, Advice, Opinions, or Information, provides in part:(c) Personal or Professional Opinion. A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue...

?The Judge Did What?!!??

Posted on March 12, 2007
In Stallworth v. Phinney, 32 Fla. L. Weekly D450 [Fla. 1st DCA 2007] the trial court modified the parties? final judgment of dissolution to order, pursuant to the parties? agreement, that the parties? daughter would complete her elementary education at a particular school [no problems yet]...

Almost There ? Light At The End Of The Tunnel

Posted on March 11, 2007
An earlier post on the status of the requirements to become a Circuit Court Mediator certified by the Florida Supreme Court [Case Number SC 05-998] was entitled We?re Still Waiting!We?re getting closer! The Court has scheduled oral argument for May 7, 2007...

Are You A ?Persuasion Master??

Posted on March 10, 2007
Huh?!? Okay, how about identifying techniques a mediator may use to assist a party in reconsidering his or her position on a particular proposal and knowing when to use various persuasion techniques?These are among the concepts mediators utilize daily...