Thursday, August 11, 2016

Join me for 8/31 CLE Mediation Webinar!

Please join me later this month for our UWWM webinar series, presented in conjunction with the University of Florida Levin College of Law's Institute for Dispute Resolution, entitled "Why it is Almost Always Better to Mediate." I'll be joined by my colleague and moderator, Michelle Jernigan, as we explore the advantages of avoiding litigation through the use of mediation in this hour-long Webinar set for noon August 31, 2016. We'll endeavor to explain how non-judicial solutions can be achieved faster, at lower cost. Of course, confidentiality is a key component of the process, and one which can be misconstrued as uniquely part of lawyer-to-lawyer communications on settlement, which are merely excluded from evidence. We will also consider how a third party in a negotiation gains the advantage of insight into positions and information that might otherwise not be available to the lawyers talking alone. As mediators, we are also able to test assumptions about the value of a case and be frank in a way that may not be possible for another lawyer. The content of this Webinar is designed for Florida trial attorneys, paralegals and legal assistants. Our Florida mediation firm, Upchurch Watson White & Max, is happy to provide legal professional colleagues with free continuing legal education opportunities on a variety of ADR issues. Our accredited Mediation Webinars are presented live monthly and you may view them later via links on our website, if unable to attend via GoToWebinar at the time of broadcast. As always, attending our complimentary Mediation Webinar will entitle you to 1.0 hour continuing legal education (CLE) credit already approved through The Florida Bar. Mediators tuning in might also claim continuing mediation education (CME) credit for certified mediators by printing the registration for your records and reporting accordingly with the Dispute Resolution Center (DRC) upon renewal. Register here-- and read more information here--

Friday, August 5, 2016

Trump Confidentiality Arbitration

Can you have it both ways? A former Donald Trump campaign staffer is asking a court keep a dispute from proceeding in arbitration. The Trump Campaign is accusing Samuel Nunberg of breaching a confidentiality agreement by allegedly leaking information to Politico about a confrontation between top staffers. Nunberg also is charged with disparaging staffers in an article published by GQ magazine. Trump is seeking at least $10 million in a claim first made at the American Arbitration Association. Nunberg asserts that the Trump Campaign is attempting to chill his free speech rights, so he is looking to a New York Supreme Court judge to stop the arbitration. The campaign accused Nunberg of attempting not only to propel himself back into the spotlight, but to use the court as a vehicle to disclose confidential information violating the agreement. Nunberg states while it may be the philosophy of the Trump Campaign that all publicity is good publicity, his arguments over arbitration are not a stunt. Reportedly, each side is fighting over which of two agreements is operative-- a consulting agreement with the presidential exploratory committee or an earlier agreement with another Trump entity. It appears that the latter contains an arbitration clause while the former mandates disputes in New York court. At issue, is screaming between former Trump campaign manager Corey Lewandowski and campaign spokesperson Hope Hicks also reported in the NY Post's Page Six. Nunberg's lawyer maintains embarrassing shouting on a public street can hardly qualify as confidential and that a citizen of a free country should be protected against prior restraints of speech. Maybe not. See full story here--

Tuesday, August 2, 2016

Secret Water Wars Mediator

A Special Master whose ruling could influence an eventual U.S. Supreme Court decision to turn down Georgia’s water spigot has set a trial in his home state of Maine, where attorneys for Georgia and Florida agreed to begin arguments on Halloween. In the meantime, each side stated they continue to pursue settlement of the federal lawsuit Florida filed under the Supreme Court's original jurisdiction, seeking to push Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin including Lake Lanier, back to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Ralph I. Lancaster, Jr., the 86-year-old veteran Supreme Court appointee, has repeatedly advised the states to settle out of court rather than live with a costly decision he stresses neither will like. The states chose a nationally known mediator whose name, oddly enough, has been kept secret by Master Lancaster’s order. Recent status reports filed by the attorneys indicate meetings between the mediator and high level state officials were continuing before trial. The parties reportedly participated in multiple one-on-one telephonic discussions with the mediator; exchanged further confidential mediation proposals; and met face-to-face in Atlanta with the mediator. Except to hear progress reports, Master Lancaster wants no part of the mediation process. He denied Florida’s suggestion to talk with the mediator, saying “'I have no intention of invading (the process) or influencing or discussing with the mediator anything that's going on.'" See news item here-- and docket here--

Sunday, July 31, 2016

Gangs Make Peace

Rapper The Game along with anti-gang activists, Police Chief Charlie Beck, Will.I.Am., and rival Los Angeles gang members gathered at a community center this month to bring an end to gang violence. The Game shared a powerful story about the recent loss of a former gang member he grew up with in foster care before calling on the crowd to make the world a better, less violent place. Some 2,500 responded to his invitation by arriving at the summit. Back in the era of Rodney King and the LA Riots of 1992, hundreds of young black men from warring factions of the Blood and Crip gangs gathered not to protest the Rodney King beating, but to declare a ceasefire. This new peace treaty included Crips, Bloods and ESEs. In a graphic example of change, a Blood and a Crip took off their red and blue T-shirts, handed them to each other and embraced in friendship. Reportedly, The Game, whose real name is Jayceon Terrell Taylor, has been vocal about building a better bridge between police and their community. He and Snoop Dogg led a march to police headquarters in Los Angeles earlier this month following the deaths of Alton Sterling and Philando Castle. They met with the mayor and police chief to discuss ways to improve things between cops and minorities. The LA police chief said about 1,000 people were shot last year. Almost 300 of them died and 80 percent of the victims and 80 percent of the shooters were young men of color. See news stories here-- and and

Wednesday, July 27, 2016

Join me for PMI in Orlando 8/21!

On August 21, 2016, I will be joining my colleagues on an ethics panel at the Professional Mediation Institute at the Orlando Marriott World Center. Our panel will address ethics, professionalism and practices unique to mediation. Common and uncommon problems that arise complicating the settlement process will be discussed as well. Other speakers will address confidentiality, diversity, domestic violence and winning strategies to employ in negotiating a settlement. Top mediators from Florida and around the nation are expected to attend. This event takes place during the WCI360 worker's compensation conference, but is not about that substantive area of law or those types of litigated cases. PMI registration includes access to 16 hours of CME/CLE, so you can fulfill a two-year credit cycle requirement in just one meeting. I have been attending this conference for many years and was last a speaker in 2013 on the subject of commercial mediation. This conference is the same month as the Florida Dispute Resolution Center's annual DRC meeting, but the continuing mediator education is more geared for Circuit-Civil Certified Mediators and continuing legal education practictioners who use mediation to resolve lawsuits. The program has been endorsed by The Florida Bar Alternative Dispute Resolution Section's Executive Council, on which I sit. The theme this year is "Getting the Most out of Mediation: Tips and Tools for Everyone Who Attends Mediation." See more here-- and registration details--

Thursday, July 21, 2016

Primate Proclivity for Peace?

I recently read with great interest about Frans de Waal's work studying primate behavior in The New York Times Book Review of Are We Smart Enough To Know How Smart Animals Are? Empathy, cooperation and fairness seem like distinctly human traits, but biologist Frans de Waal explains why animals might share those same qualities. He maintains that for centuries, our understanding of animal intelligence was obscured in a cloud of false assumptions and human egotism. A primatologist examining boundary lines between our species and others for thirty years, he is said to painstakingly untangle the confusion through research, revealing a wide range of animal capabilities. He studied prosocial choices in apes, showing yawn contagion, synchronization, consolation behavior, and altrusim. Even after fighting viciously, Chimpanzees reportedly reconcile due to saving a valuable relationship damaged by conflict. In a Ted Talk, he shows video of Capuchin monkeys which demonstrated empathy when there was clear inequity in being rewarded. Evolved morality exists in his opinion, rather than believing our bodies may have evolved from monkeys, but that our brains are their own miraculous and discrete inventions. He argues cognition must be understood as an evolutionary product with what he calls “cognitive ripples.” We tend to notice intelligence in primates because it’s most conspicuous. It looks the most like our intelligence. However, “after the apes break down the dam between the humans and the rest of the animal kingdom, the floodgates often open to include species after species.” See book review here-- and Ted Talk here--

Friday, July 8, 2016

Why Can't We All Just Get Along?

Recent shootings by law enforcement caught on video and now snipers taking out police officers have me thinking of the refrain from Rodney King, "Can we all get along?" Though now almost a quarter century ago, it seems like the LA riot events was last time we really had a national debate about police brutality and racial injustice. Peacemakers such as Doug Noll, with whom I've taken courses at the National Academy of Distinguished Neutrals, remind us that neuroscience has established an irrefutable fact: human beings are emotional, not rational. Still, we have a belief that humans are distinguished from all other creatures because of their rationality. To be irrational is to be something less than human. People engaged in peacemaking long assumed that despite the emotions of conflict, people are fundamentally rational. The truth is, we are ninety-eight percent emotional and about two percent rational. Research demonstrates that we must strive to be far more aware of neuropsychological factors of human conflict. Noll believes these factors explain much about conflict behaviors. They also provide insights about new interventions in intractable conflicts. Conflict starts with a problem serious enough to cause anxiety, reflected in a feeling of insecurity. When anxiety or insecurity is first experienced, he says we have a choice between reactivity and reflection. If we do not make a choice, Noll says our default mode is to be reactive. By being reactive, we might reject the problem, give up, or feel inadequate to deal with the problem. If the problem is persistent, we might struggle or exit. As the conflict develops, we perceive it as a threat, and we may blame, attack or withdraw. These behaviors constitute our fear reaction system. If the choice for reflection is made, we have learned to reflect, relate, and relax. The insecurity arising from a conflict situation is recognized as pointing to a pathway of growth towards greater peace and self-realization. The brain's altruistic, cooperative social attachment systems actually allow us to be compassionate, tolerant, and exhibit loving-kindness. Perhaps through this, we can engage in conflict resolution and achieve peace. See more here-- and