Wednesday, July 17, 2019

Orange County ODR Pilot Program

Today at the Orange County Bar Association's Judicial Relations Committee meeting, it was announced that Small Claims parties in the Ninth Judicial Circuit Court Court will soon be able to utilize an online dispute resolution (ODR) program for a total cost of $25. The vendor, Tyler Technologies, is already known to court administration because of its Odyssey case management system license. This add-on service uses Modria software which was acquired by Tyler after success demonstrated in resolving business to consumer e-commerce transactions. Chief Judge Myers said the first 1,396 mediation cases would be handled at no cost to the court. Since 1992, there has been a $15,000 limit on damages in civil suits filed on the county court level. With the recent bill signed by Governor DeSantis increasing the small claims amount in controversy limit to $30,000 come January 1, 2020, the county judges are preparing for how to handle more volume. The limit goes even higher-- to $50,000 by January 1, 2022. The $15,000 limit remains in place for cases filed before December 31, 2019. The plan, according to a representative at the Orange County Clerk's office, is to roll something out this fall. ODR is touted as helping individuals resolve legal cases without having to set foot in a courtroom. The concept is a simple back and forth online negotiation replaces the need to appear or take time off work to spend time in a government building. See legislation here-- https://bit.ly/2LnnAH7 and current programs here-- https://bit.ly/2JNvXbI

Thursday, July 11, 2019

Water Wars Persist

Last summer, the U.S. Supreme Court substituted a court-appointed Special Master (since deceased) after rejecting his ruling recommending Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit Florida water systems and remanding because he “applied too strict a standard” in rejecting Florida’s claim. The rejected recommended ruling in the decades-long Water Wars favored Georgia. In the year after swapping for Special Master Honorable Paul J. Kelly, Jr., a Senior Judge on the U.S. Court of Appeals for the Tenth Circuit, to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia, not much has transpired. This past spring, Florida submitted a motion for oral argument which remains pending. Florida asserts the first Special Master found that Georgia’s upstream water use was unreasonable and that the Supreme Court already rejected an additional finding that nothing could be done because the U.S. Army Corps of Engineers, which manages the reservoirs in the river system, is not a party to the case. Florida seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. Georgia’s still claims any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry in southwestern Georgia. Florida wants to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Georgia maintains Florida has failed to prove harm to the aquatic species. This blog has followed the Water Wars for years in other entries. Hopefully, a resolution will occur this year. See more detail in docket here-- https://bit.ly/32i39AN

Monday, June 24, 2019

U.S. Women's Soccer Mediation

The World Cup competing U.S. women’s national team (USWNT) players and the U.S. Soccer Federation will mediate over pay equity and workplace dignity issues following the conclusion of the tournament in France next month. U.S. Soccer and the 28 USWNT players suing the federation have tentatively agreed to mediation in the equal pay fight on the disparity between U.S. men's and women's national team players. Women players engaged in legal action, including filing with the U.S. Equal Employment Opportunity Commission and suing U.S. Soccer in federal District Courts. The USWNT Players’ Association and U.S. Soccer had agreed to a new collective bargaining agreement that ensured games would continue to be played, but failed to resolve many grievances like workplace discrimination on the basis of gender. Salary and workplace discrepancies are highlighted by global dominance of the U.S. women, especially when compared to the lackluster men's team. USWNT players contend they earn 62% less than males and have inferior travel, second-rate training facilities and more dangerous playing conditions. Employers accused of Equal Pay Act violations typically insist lawful explanations exist for differences in pay between male and female workers. The women also contend U.S. Soccer is violating Title VII of the Civil Rights Act of 1964 which makes it illegal for employers to use the gender of workers to determine pay. Employers often rebut the assertion that gender played any role in pay calculations citing supervisors’ evaluations of employees to distinguish them on bases other than their sex. Of course, U.S. Soccer rejects these and related claims, saying players negotiated the very rules that they are now contesting. It will be interesting to see what becomes of this dispute and whether the U.S. women can come home as champions heading into the negotiations. See full stories here-- https://lat.ms/2ZLPCiv and https://yhoo.it/2ID5kae

Tuesday, June 18, 2019

Florida Appellate Mediator Certification Changes

Under a new Administrative Order of The Supreme Court of Florida, No. AOSC19-26 governing certification of mediators, several changes to the continuing mediator education (CME) requirements have been implemented. News of the changes came to presently certified mediators via the Florida Dispute Resolution Center (DRC), including the removal of the four-hour appellate-specific CME requirement. I have been mediating appellate cases since 2001, before the statewide certification existed. In 2001, the Fifth District Court of Appeal instituted a pilot program referring appeals to mediation before the expense of briefing. The pilot was deemed a success by the court and adopted as a permanent program in 2004. The program is touted as achieving the goals of saving litigants time and money by resolving disputes more quickly and less expensively than the appeal process. This includes helping parties and counsel to narrow and clarify issues for appeal so that cases can be expedited. For many years, the results have hovered around a third of cases being resolved through the appellate mediation process. Those of us who participated as mediators were grandfathered into the statewide certification which requires four hours of initial instruction by a recognized DRC approved trainer. Until now, four additional hours of CME was required every two years for recertification. However, be advised that effective immediately, certified appellate mediators must maintain only a certification in either of family, circuit or dependency mediation and complete only the standard CME requirements in order to renew as a certified appellate mediator. See more here-- http://tiny.cc/1obh8y

Tuesday, May 28, 2019

Florida Mediator Rule Changes Coming

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy (Rules and Policy Committee) today invited all interested persons to comment on proposed amendments to small claims, county, civil, family, juvenile, and appellate state court rules of procedure regarding mediation. According to the Rules and Policy Committee, the amendments are intended to protect the public by ensuring that any individual who mediates cases pending before any state court shall be subject to the ethical standards and discipline procedures in the Florida Rules for Certified and Court-Appointed Mediators. The amendments originated as Rules and Policy Committee work product that was circulated to the ADR community in 2017. The Executive Council of the ADR Section of The Florida Bar deliberated on this matter then and voted in favor of a mandatory certification for court connected cases. However, after receiving feedback and engaging in its own careful deliberation, the Rules and Policy Committee revised its proposal to meet the interests of both the ADR and legal communities while continuing to meet the goals of the Long-Range Strategic Plan for the Florida Judicial Branch 2016-2021, to “maintain a professional, ethical and skilled judiciary and workforce.” The 2017 amendments proposed that all pending court cases be mediated by a Florida Supreme Court certified mediator. The 2019 amendments are now offered instead of those amendments. The amendment to each set of procedural rules will require that any mediator who mediates a state court action does so subject to the ethical standards the Supreme Court has imposed on all certified and court-appointed mediators irrespective of whether the mediator is certified, non-certified, or court-appointed. All individuals who mediate cases pending before any state court shall be subject to discipline and the existing procedures. Please send comments for the Committee to the Florida Dispute Resolution Center (DRC) by July 8, 2019, to DRCmail@flcourts.org. You may comments send via mail to: Florida Dispute Resolution Center, Supreme Court Building, 500 S. Duval Street, Tallahassee, Florida 32399; or fax at (850) 922-9290

Thursday, May 16, 2019

Class Arbitration Attacked Again

Recent rulings from the U.S. Supreme Court have supported the underlying concept codified in the Federal Arbitration Act (FAA), but have demanded clarity in the drafting of agreements seeking implementation of an arbitration process through which to dispose of disputes. Recently, in Lamps Plus, Inc. v. Varela, the Court found neither silence nor ambiguity in an arbitration agreement regarding the permissibility of class arbitration enables a court to find that the parties agreed to permit class arbitration. According to the Court, consent is fundamental to arbitration. Arbitration agreements must be express and unambiguous because it would so drastically alter the nature of the proceeding from the simple bilateral process that was envisioned in the FAA. Rules of ADR organizations such as JAMS or AAA incorporated by reference into the agreement that contain ancillary rules under which arbitrators could conduct class proceedings had no effect on the Court’s decision. This implies that mere incorporation of other procedural rules is not a sufficient basis to infer an agreement to permit class arbitration either. The Court emphasized that class arbitration proceedings are fundamentally different in nature from bilateral arbitrations envisioned by the FAA. Class arbitrations sacrifice the informality of the contemplated bilateral process, as well as its speed, simplicity, and relative inexpensiveness, and instead produce a slower, more costly, and more complex process that looks like “the litigation it was meant to displace." See full analysis here-- https://bit.ly/2HlFvdW and opinion here-- https://bit.ly/2GvzOZm

Wednesday, April 24, 2019

May Webinars at Noon 5/1 & 5/9

I'll be participating in two webinars you can attend during lunch at your desk next month on May 1st and May 9th. The first presentation is brought to you through The Florida Bar Alternative Dispute Resolution (ADR) Section and will provide an overview of the latest in Online Dispute Resolution (ODR). This live audio webcast will examine different emerging ODR processes that are currently available. We'll look at the benefits of using such processes, the technology used to implement those processes and the ethical issues presented when engaging in virtual or online mediation. The Florida Bar has approved the online program for 1.0 General / 1.0 Ethics / 1.0 Technology Continuing Legal Education (CLE) credits. Of course, certified mediators may also submit as Continuing Mediator Eduction (CME) credit to the Dispute Resolution Center (DRC) upon their renewal. As a bonus, if you are a member of our ADR Section, you qualify for a $10 discount on the $50 registration fee. The webcast will remain accessible for 90 days after purchase. I'm moderating a panel featuring my ADR Section colleagues Christy Foley of Winter Park and Natalie Paskiewicz of St. Petersburg. See more information here-- https://bit.ly/2GDA9dE Register here-- https://bit.ly/2XE3Hxt The second presentation is complimentary and focuses on techniques for closing gaps at mediation. Our program on the GoToWebinar platform will feature my firm colleagues Michelle Jernigan and Jeff Fleming. We will explore scenarios for getting to yes. The course is designed for any attorney who negotiates during mediation and wants to better understand what skilled mediators do to narrow gaps that develop or widen. The webinar will provide 1.0 General CLE hours from The Florida Bar and you can register here-- https://bit.ly/2KWuZh3