It's Mediation er, um rather ADR Week!

Each October, we celebrate Mediation Week which has officially changed to Alternative Dispute Resolution or "ADR Week" in recognition of the importance of all forms of dispute resolution utilized in Florida. Chief Justice of the Florida Supreme Court, Carlos G. Muñiz, recognized October 13-19th as ADR Week in Florida’s courts, and the members of Florida’s Dispute Resolution Center and The Florida Bar ADR Section are excited to take this time to celebrate Florida’s leadership over the past 35 years in successfully utilizing ADR practices. Of course, these practices include mediation, arbitration, parenting coordination, eldercaring coordination, and other restorative and evaluative processes that encourage joint problem solving and effective resolution of disputes outside of the courtroom. All forms of ADR strive to assist parties to resolve their own disputes through self-determination, without the need for a trial. ADR is quite effective and efficient for the attorneys and litigants involved, and it also conserves resources in Florida’s trial and appellate courts. Florida’s skilled ADR practitioners empower individuals, families, schools, and businesses to foster communication, create solutions, and develop lasting solutions to difficult issues. Locally, the ADR Section is celebrating by having a mixer on 10/22 from 5:30-7:30 PM at Eola Wine Company, 430 E. Central Blvd., Orlando. Please RSVP to alicia@rtmediation.com See more here-- https://tinyurl.com/28pmjrpu and here-- https://tinyurl.com/yxv72eky

Join us 10/30 as we reflect on 10 years!

Join us later this month on 10/30 at noon ET for a free CLE webinar as my esteemed colleague and I celebrate our 10th anniversary with ADR pioneers, Upchurch Watson White & Max Mediation Group. We thought we would share our combined wisdom gained from helping lawyers and participants of the process get to yes over the past decade. As the registration blast indicates, veteran circuit-civi mediators of the firm, Jeff Fleming and Lawrence Kolin, will take our attendees on a journey through a decade of lessons learned from serving as full-time professional neutrals, including: - How their perceptions of mediation have changed - Comparing Zoom with in-person mediations - Preparation and mediation summaries - Opening statement by the parties - Best timing for a mediation - How long mediations should last - Why some caucuses take so long - Using brackets effectively - Asynchronous negotiation - Managing expectations The Florida Bar has accredited this webinar for 1.0 hours of General Continuing Legal Education (CLE) and of course you may, as always, self-report Continuing Mediator Education (CME) credit to DRC. Register here-- https://us02web.zoom.us/webinar/register/WN_aMDTyUADSYG38xPgFZCGIg#/registration

Comments on Attorneys Signing Settlement Agreements Due 10/1

The Supreme Court of Florida has received a petition from The Florida Bar Civil Rules Committee stemming from a case reported a couple of years ago, Parkland Condominium Association, Inc. v. Henderson, 350 So. 3d 484 (Fla. 2d DCA 2022) where the court did not enforce a deal when the attorneys signed a mediated settlement agreement, but the parties never did. The proposed rule change to Fla. R. Civ. P. 1.730 will no longer require signature of counsel to the parties on mediation settlement agreements and will permit the signature of a party representative (e.g., insurer) if they have full authority to settle. Many cases we see referred to mediation have no Certificates of Authority despite the civil rules saying they must be timely filed before mediation. Mediators compromise their neutrality when they are asked by counsel and their clients to police such compliance. The Civil Rules Committee notes that in reviewing Rule 1.730, it requires, "erroneously," a lawyer's signature on a mediation agreement as Florida law does not otherwise require it. The applicable statute merely requires that a mediated settlement agreement be "signed by the parties and, if required by law, approved by the court." See § 44.404(1)(a), Fla. Stat. Attorneys signing at the end gives a certain gravity to the mediation process and evidences they have read over it and advised the parties signing. I never saw counsel complain in decades of doing this. Comments are due by October 1,2024. Find more on case number SC2024-0774 here--https://tinyurl.com/mrxuxcmj

Did The Mouse Give Arb a Black Eye?

Recent stories of a wrongful death case that Disney sought to arbitrate through a clickwrap-type agreement from its streaming service have caused an uproar. After a media frenzy, Disney relented yesterday, waiving arbitration and stating: "'We strive to put humanity above all other considerations. With such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss.'” Though Disney has withdrawn its motion to arbitrate and will proceed in Orange County Circuit Court, those legal clauses still exist across Disney’s platforms, including on its streaming services and park entrance tickets. For instance, when you create a Disney+ or ESPN+ account, you also agree to the Walt Disney Company’s Terms of Use that include waiving a jury trial. Disney said it was defending against the attempt to include them in the lawsuit against a restaurant, an Irish pub inside Disney Springs where the decedent dined, at the shopping complex Disney leases to other companies. The lawsuit alleges it was billed on Disney’s website as having allergen free food and that the waiter then “'guaranteed'” that the food was allergen-free. The patron, a physician, later died from anaphylaxis, even after self-administering an EpiPen. Arbitration was sought based on an older Disney+ subscription, as well as use of the company's website in 2023 to buy theme park tickets. These headlines, combined with the recent controversy over Olympic gymnastics medals, seemingly gives pause to those that would otherwise utilize an ADR process that often leads to faster outcomes with less associated costs and finality in deciding disputes. See more here-- https://tinyurl.com/35dva36a and https://tinyurl.com/nhkbkrrm and https://shorturl.at/6qU3C (image via Deviant Art)

FL Case Management Comments due 8/6

The Supreme Court of Florida recently put forth new Case Management procedures under Rules 1.200 and 1.201 Florida Rules of Civil Procedure, but because they did so without a formal comment period beforehand, members of the bar may weigh in by August 6, 2024. These rule changes would otherwise take effect on January 1, 2025. I have been working with the ADR Section of The Florida Bar on a comment regarding the lack of a clear definition for exactly what alternative dispute resolution processes are contemplated by the rule. We are seeking to add the following italicized language into the revised Rule 1.200(d)(2)(H) entitled Case Management Order for completion of alternative dispute resolution including mediation, arbitration and other processes available under Florida Statutes and Florida Rules of Civil Procedure. Defining what “alternative dispute resolution” includes or means (as it is not clearly defined in the Florida Rules of Civil Procedure) will reduce confusion by specifically mentioning the most commonly utilized methods and alluding to additional methods available under Florida Statutes and Florida Rules of Civil Procedure, thereby supporting the Supreme Court's purpose to promote fair and timely resolution of cases. This also allows for future methods of dispute resolution to be incorporated without the need for rule amendments, such as perhaps Early Neutral Evaluation. In their commentary to the rules, the court notes Rule 1.200 as amended is intended to supersede any case management rules issued by circuit courts and administrative orders on case management to the extent of contradiction. The rule is not intended to preclude the possibility of administrative orders issued by circuit chief judges and local rules under Florida Rule of General Practice and Judicial Administration 2.215 that refine and supplement the procedures delineated in the rule, including rollover practices for situations where a trial is not reached during the scheduled trial period. See more here at case number SC2023-0962 here-- https://tinyurl.com/yujktxpf

FL Non-Binding Arb Rule Changes Effective 7/1

The Supreme Court of Florida accepted most of the Florida Bar Civil Rules Committee’s proposal to amend Rule of Procedure 1.820 regarding the Non-Binding Arbitration process, though rejected requiring that an arbitration decision be served on the parties, but not filed with the court. The Committee proposed this change because the move to electronic filing made rule 1.820(g)(3)’s requirement to file an arbitrator’s decision under seal unworkable, as it is difficult to shield certain parts of an electronic case file from review by the presiding judge. Though they agreed the rule needs to be amended to better align with existing electronic filing practices, they believe an arbitrator’s decision needs to be filed with the court after the arbitration process has concluded to avoid unnecessary confusion and to ensure that the court can timely act on the decision under rule 1.820(h) if no request for trial de novo is made. Still, the court might revisit this matter and suggested a possible solution may be to simply require arbitrators to use a coversheet when filing their decisions with the court reminding the presiding judge not to review the decision-- unless no request for trial de novo is made in accordance with Section 44.103(5), Florida Statutes (2023). As for the changes going into effect this summer, Rule 1.820(h) is now retitled “Notice of Rejection of the Arbitration Decision and Request for Trial” and clarifies the process for rejecting an arbitrator’s decision and requesting a trial de novo. Under the amended rule, an arbitration decision will be deemed rejected only if such notice is filed with the court within 20 days of service of the arbitrator’s written decision. See more here-- Fla. S. Ct. Case number SC2022-1719 https://tinyurl.com/5c5wbttn

Florida Arbitrator Rule Comments Due 6/4!

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy has filed a petition with the Florida Supreme Court to amend the qualifications for court-appointed arbitrators to clarify the language of Rule 11.010, Florida Rules for Court Appointed Arbitrators, entitled Qualification, which provides the requirements for qualification as a non-binding arbitrator. Apparently, the impetus is that the current rule is internally contradictory, or at best confusing. The first sentence basically nullifies itself– “Arbitrators shall be members of The Florida Bar, except where otherwise agreed by the parties.” So, the parties can decide an arbitrator is anyone off the street despite the first clause in the sentence requiring them to be members of The Florida Bar. The second sentence of the current rule is vague or ambiguous. It says, “The chief arbitrator shall have been a member of The Florida Bar for at least five years” with no reference to good standing or whether the “five years” are immediately preceding or even consecutive. The third and final sentence then says, “Individuals who are not members of The Florida Bar may serve as arbitrators only on an arbitration panel and then only upon the written agreement of all parties.” By its terms, this sentence limits the seemingly absolute ”where otherwise agreed by the parties” in the first sentence of the rule and allows individuals who are not members of The Florida Bar to serve as arbitrators only on panels even “where otherwise agreed by the parties [from the first sentence].” Some members of the Arbitration Committee of the Alternative Dispute Resolution Section of The Florida Bar are considering a comment with concern for out of state lawyers. The proposed rule only adds permission for them to be the chief or sole arbirator “if agreed to by the parties.” Otherwise, they have the same opportunity to be arbitrators as under the first sentence of the current rule. The new language purports to maintain the protection of the qualification requirement for arbitrators, but allows the parties to continue to select arbitrators from a broad field. The petition is styled In Re: Amendments to the Florida Rules for Court-Appointed Arbitrators, and the court has assigned case number SC2024-0442. The court has announced a public comment period through June 4, 2024. See more here-- https://tinyurl.com/2p9mcx8r and https://tinyurl.com/bdhc43c4