Wednesday, September 1, 2021

Comments on Remote Rule Changes Due 9/30

The Supreme Court of Florida is extending a public comment period for a rules petition submitted by its COVID-19 Workgroup that is designed to promote greater use of tech due to courts, counsel and parties having experienced great efficiency during the pandemic. Changes to Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology, also impact six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure. The amendments focus on ways to permit virtual proceedings under many circumstances, including mediation. The so-called Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 found Court and Bar leaders embraced remote technology to navigate the COVID-19 pandemic. After months of deliberation, the members determined that permanent, broader authorization for the remote conduct of court proceedings after the pandemic was warranted based on the positive outcomes and efficiencies being observed during the pandemic. The Workgroup noted significant cost and time savings for litigants, lawyers and other stakeholders, while recognizing that remote proceedings are not appropriate in all circumstances. The proposed amendments to Rule 2.530 still require a court official to consider any objections to the use of remote technology and to ultimately approve all use of communication technology. Chief Judge Munyon of Orlando who chairs the effort said remote mediations are here to stay, along with remote hearings and depositions. “Whether a particular hearing is so complex that it needs to be in person, or the evidence is such that it needs to be in person, will be treated on a case-by-case basis,” she said as reported by The Florida Bar News. This morning, the Executive Council of ADR Section of The Florida Bar contemplated filing a comment in support of the continued use of remote mediation attendance which has proved quite effective in the past eighteen months. See more here-- and

Sunday, August 1, 2021

Mediate First

Be careful not to jump the gun into arbitration when a contract requires other alternative dispute resolution processes as conditions precedent. An appellate court in Texas affirmed the vacatur of an arbitration award because mediation was a condition precedent to arbitration under the governing contract and was not satisfied or waived by the parties prior to arbitration. In affirming the vacatur, the court held that the dispute was never properly before the arbitrator and therefore exceeded his powers in issuing the award. Sometimes an arbitrator in a private arbitration is not given a copy of the entire contract upon being selected. This needs to happen early and counsel should ensure they are on the same page procedurally in order to avoid an expensive and wasted outcome. The agreement at issue essentially stated any controversy shall be resolved by mediation, and if such mediation is unable to resolve it, then exclusively by binding arbitration. The court reasoned that the controversy was not properly before the arbitrator unless and until the parties mediated. There was no sympathy to the appellant’s repeated attempts to mediate with appellees prior to arbitration and the court held ignoring such demands was not inaction or a waiver of the right to mediate. See more here-- and

Saturday, July 17, 2021

Mediator Testimony?

A recent query to the Florida Mediator Ethics Advisory Council (MEAC) invovled a federal court outside the state contacting the mediator regarding a post mediation status conference. Apparently, the parties gave different accounts of what occurred and the mediator was called for an opinion of the veracity of such irreconcilable statements. The mediator informed the court it would concern knowledge learned through confidential and privileged mediation communications and refused to provide same (the mediation was conducted pursuant to Florida rules and statutes). Thereafter, the mediator was ordered to "answer the question of whether plaintiff made a demand and whether the defendants made any counteroffer during the mediation, but not disclose any specific statements of the parties or the substance of their positions." MEAC advised that a mediator should not voluntarily testify in court regarding information learned in court unless confidentiality is waived by the parties or such communications fall within the exceptions listed in Chapter 44, Florida Statutes. Because this was not truly a Florida case and outside its jurisdiction, MEAC merely reaffirmed previous positions that a mediator should not voluntarily testify in court regarding information learned in mediation unless the parties waive confidentiality, or the communications fall within the exceptions found in Section 44.405, Florida Statutes. If a court issues an order for the mediator to testify, the mediator should either file a protective order or notify the judge that the mediator is statutorily required to maintain confidentiality of mediation communications. Interestingly, a Florida court decision published this month by the Fifth District Court of Appeal opining a motion to reform a mediated settlement agreement adequately alleging a claim for relief based on mutual mistake must be resolved by evidentiary hearing mentions in a footnote that a mediator would be permitted to provide testimony for the limited purpose of establishing or refuting legally recognized grounds for reforming a settlement agreement reached during a mediation pursuant to Section 44.405(4)(a)5, Florida Statutes. See more in MEAC Opinion 2021-005 and 5th DCA Case No. 5D21-316

Monday, June 21, 2021

No Prime Day For Amazon and Arbitration

The U.S. Supreme Court decided today not to consider whether drivers for Amazon’s Flex delivery service are interstate transportation workers who can avoid arbitration as part of a proposed class claim. Inc. had urged the high Court to review a federal appellate decision allowing a Flex driver to avoid arbitrating proposed class claims that he and others are misclassified as independent contractors because they’re interstate transportation workers exempt from the Federal Arbitration Act (FAA). The First Circuit Court of Appeals held last summer that those workers making local deliveries to Amazon customers qualify for the FAA exemption, even though they don’t cross state lines, because their work involves transporting goods in the flow of interstate commerce. Flex drivers, therefore, aren’t bound by arbitration agreements that would prevent them from litigating their state law wage claims. In recent years, Amazon used independent contractors to deliver goods through its Flex smartphone app. Flex contractors could sign up for shifts and use their own car while adhering to Amazon’s standards to deliver packages. However, if a contractor takes longer than their shift to complete their deliveries, they are not compensated for extra time, nor reimbursed for gas, vehicle maintenance, or cell phone data costs for the job. Working with Flex, an individual agrees to its terms of service, which requires settling disputes through arbitration governed by the FAA. Interestingly, earlier this month, the company changed its terms allowing people to bring individual or class action lawsuits against it. Amazon made the change in response to more than 75,000 pending arbitration demands on behalf of its Echo device users that would have required it to ante up tens of millions of dollars in filing fees in those cases. It now faces several class actions, including one alleging that it improperly recorded and preserved conversations through its Echo Dot Kids devices. See more here-- and and

Tuesday, May 25, 2021

Center Square

I finally got my childhood dream to be on a form of Hollywood Squares and as the center square, no less! The Orange County Bar Association's Intellectual Property Committee invited me to participate in its Zoom version of the venerable TV game show and I'm sure the ghost of Paul Lynde was watching. We focused on the topic of trademark clearance with the determination for each team being whether or not the mark contested was infringing. Likelihood of confusion factors we used come from the analysis first seen two decades ago in the Frehling case which considered the following: 1. Type of mark 2. Similarity of mark 3. Similarity of the products the marks represent 4. Similarity of the parties' retail outlets (trade channels) and customers 5. Similarity of advertising media 6. Defendant's intent 7. Actual confusion We had local trademark practitioners from prominent firms who practice IP in Orlando, both as panelists in the squares and on teams of X's and O's. Some cases were pretty close on the question of infringement leading to an exciting game of tic tac toe. This format was inspired by the past year of essentially living on Zoom in the little squares remniscent of this cheesy 1970s game show and such shows as The Brady Bunch. Thanks to Josh Brown for conceiving of this CLE!

Monday, May 17, 2021

Celebrating 20 years as Mediator!

This month marks my 20th year as a Florida Supreme Court Certified Circuit Civil Mediator, an Appellate mediator (since the 2001 pilot program with our 5th DCA) and a federal district court mediator. Back in the day, you had to be a Florida lawyer for five years before even becoming certified (much like a judge). I fondly recall my training with former judge David Strawn, a pioneer in the field of mediation. I am still in touch with my mediation training classmates, some of whom are also mediating full-time and even one who took the bench and now serves our business court division in Orange County. Through the years, this field of law has evolved and some rules have changed, but by and large the basics are the same, proving that a 3,000 year-old tradition of dispute resolution has a place as a means of diposing of cases in the modern court system. This year in particular has been a seismic shift in our technique due to the immediate need for a solution to continue mediating lawsuits during a pandemic. Zoom and other existing commercial online platforms became a lifesaver for most practicing lawyers and mediators. Courts seem destined to continue using technology for online hearings and my colleagues anticipate scheduling of virtual mediations well beyond the Covid-19 crisis. A massive backlog of cases has ensued requiring even more dispute resolution. Our profession as attorney-mediators has never been more strongly represented than by the Florida Bar ADR Section which is now over a decade old. At the time of section formation in 2010, I also founded the Orange County Bar Association ADR Committee to deal with local issues in dispute resolution. The discourse among the members of both organizations has never been higher with committed practitioners engaged in changing the role of neutrals for the better. While I look forward to continued advances in online dispute resolution-- which does enjoy a high success rate in producing settlements-- I also long for a return of good old-fashioned face-to-face negotiation! Schedule with me here--

Thursday, April 29, 2021

Active Case Management Comes to FL 9th Circuit

At today's Judicial Town Hall meeting held by Chief Judge Myers, the Ninth Judicial Circuit of Florida rolled out a new Administrative Order implementing a much more active case management rubric than this jurisdiction has ever known. Counsel will now be required to designate at the outset whether a civil case in county or circuit court is on a complex (per civil rule), streamlined (12 months), or general (18 months) track. Much like federal court, with track designation the court will then issue a Standing Case Management Order imposing deadlines intended to move the case to conclusion under prescribed timelines based on its type. The active case management program will not apply to cases assigned to: (a) Business Court; (b) any civil case designated as complex under Florida Rule of Civil Procedure 1.201; and (c) any civil cases filed on or before April 29, 2021. Existing cases in which the court has entered an order setting the case for pre-trial and/or trial will keep the dates and deadlines already set forth therein which shall govern the progress of those cases. With regard to dispute resolution, within 30 days after completion of the depositions of all parties, counsel shall meet and confer regarding whether an Early Mediation would be productive to resolution of certain issues or the entire case. A so-called Final Mediation shall occur no later than 30 days after completion of all discovery. The new program requires a plaintiff filing a case to include a standard case management plan with the complaint. Until a case management plan is filed by the plaintiff initiating a case, the Clerk will not issue a summons. See more in A.O. 2021-4 here-- and forms found here--