Friday, December 15, 2017

FL Senate Mediation Authority Bill

A new bill for the 2018 Florida legislative session has been introduced requiring that insurance carrier representatives who attend circuit court mediations have specified settlement authority and the ability to immediately consult by specified means with persons having certain additional settlement authority and to be available by telephone. Senate Bill SB 1034 would create Section 44.407, Florida Statutes, which would allow sanctions for insurance carriers that fail to comply with good faith requirements of mediation (a term never truly defined). Additionally, Section 44.408 would compel certain third parties to attend mediation upon the request of the mediator or be available to teleconference, though not required to pay any mediation fees by participating. Also, Section 44.409 would limit information that may be included in the mediator’s report to the court. The new law would allow only the following reporting: (a) A complete agreement was reached (b) A partial agreement was reached (c) No agreement was reached. If a partial agreement was reached which eliminates claims or parties from the litigation, a list of such claims and parties may be provided, but no additional information may be disclosed. If passed, and signed by the governor, this act would take effect July 1, 2018. The Executive Council of The Florida Bar Alternative Dispute Resolution Section on which I serve is looking at this legislative development and will take up the issue at its January, 2018 meeting in Orlando. See proposed language filed here-- http://bit.ly/2zgh9hN and ADR Section info at www.FlaAdr.org

Tuesday, December 5, 2017

Favoritism Frowned Upon

A Florida County Judge saw fit to refer hundreds of mediations to her former campaign adviser, resulting in discipline. Judge Claudia Robinson admitted steering some 80 percent of her pending cases to the same mediator, Michael Ahearn, an unpaid adviser on her 2014 mostly self-funded election campaign. Judge Robinson acknowledged she contravened judicial canons by “creating the appearance of impropriety and favoritism” in her dealings with her former political consultant. The Judicial Qualifications Commission (JQC) did not find that Robinson entered into a formal agreement to compensate Mediator Ahearn for his campaign services, which would have been illegal. In each case in which he was appointed, the parties involved had the right to reject his appointment in favor of another mediator. Ahearn actually worked on 174 of 296 cases the judge ordered into mediation, but was assigned to 245 as default mediator if the litigants did not choose an alternative within 10 days. The mediator charged $250-$300 per hour with a one-hour minimum. Ahearn testified he and the judge never agreed she would direct cases his way in exchange for his pro-bono campaign consulting work. Judge Robinson reportedly broadened the pool of mediators after a journalist broke the story. The news story by an investigative reporter also prompted an ethics complaint against the mediator, who denied any wrongdoing. The Florida Bar investigated those allegations and dismissed a bar complaint finding no inappropriate relationship between mediator and judge. The judge now faces a 30-day suspension without pay, based on the JQC’s recommended stipulation. The Florida Supreme Court now has the discretion to accept or reject the terms of the stipulation. See more here-- http://bit.ly/2ArGGWh and http://bit.ly/2AXJ9ch

Wednesday, November 29, 2017

Sexual Harassment Mediation

What a season it has been for sex in the workplace. Sexual harassment claims involve a complainant (an employee), the accused (usually an employee), and the employer (or company). Complainants normally seek to address being violated or abused in some way and need to feel normal again. Complainants want unwelcome behavior to stop, but often don't want to put their career in jeopardy by filing the complaint, and would rather continue doing his or her job as though nothing has happened. They also may want the employer to make up for past loss of a promotion due to the alleged harassment or even back pay. Mediation can help avoid further emotional trauma, including a public trial. Likewise, the accused may welcome maintaining confidentiality of the charges to the greatest extent possible, and to keep his or her job. The accused may even find exoneration possible. Finally, all employers want to avoid liability, while maintaining productivity and upholding company policies. Because mediation remains confidential, negative career repercussions are less likely to occur. With a resolution, a victim may resume his or her job with the company. The process also allows the victim to air frustrations and self-determine remedies that allow him or her to be made whole again. These remedies are often not available in traditional litigation and can include apologies and promises of help in attaining other employment. Similarly, employers can agree to reinstate a complainant or award an previously withheld promotion. Harassers can be transferred, fired, or reeducated. Mediation can meet the accused's objectives, as well, with an opportunity to clarify his or her side of the story. The confidentiality of the proceedings allows settling the situation without public disparagement. If the charge resulted from a misunderstanding, the miscommunication can be worked out without becoming more polarized. Mediation also allows the accused to make amends for the unintentional harm inflicted. Employers find disposing of these cases through mediation quicker and less expensive than litigation and the process provides less disruption of the work force. Finally, mediation promises less stress than litigation for all parties involved. See more here-- E. Whittenbury Vol. 43, Number 4, Business & Economic Review, Moore School of Business, University of South Carolina http://bit.ly/2AhpzGM

Thursday, November 16, 2017

International Arbitration in Florida

The Supreme Court of Florida last week approved a Florida Bar board certification specialist (BCS) program for international litigators and arbitrators due to Florida increasingly becoming an international arbitration hub. In a decade-long effort by the International Law Section to create a board certification program, international litigators and arbitrators now have a novel certification helping to position particularly Miami as an attractive place for foreign companies to resolve their disputes. To meet the requirements for board certification, practitioners will have to have a significant amount of experience and will have to submit references of arbitrators, judges and opposing counsel. Practitioners also will need to show that they have completed a certain number of hours of continuing legal education in the particular area. Finally, practitioners will have to take a lengthy exam. Another rules decision now allows foreign attorneys to work as authorized in-house counsel for companies in the state. Previously, only American attorneys could be in-house counsel, but companies often have foreign lawyers in-house if they are doing lots of foreign business. Reportedly, those attorneys would have run the risk of being subject to Florida Bar prosecutions for practicing law without a license. Communications between these in-house foreign attorneys and their companies in the event of litigation are also protected under the change when opposing counsel seek such communications, enabling businesses to hire the people they desire to advise them. As a sidebar, I recently attended our annual retreat of the Executive Council of our Florida Bar ADR Section where we discussed board certification for arbitrators and mediators by the bar for civil cases in the state. It was decided the section would discontinue pursuing such a specialization certification from the state bar in these forms of ADR, as it does not actually constitute the practice of law. Regardless, there are already a non-BCS certification for mediators and a qualification for domestic arbitrators by The Supreme Court of Florida. That court will soon decide if court connected cases require certified mediators be assigned. Stay tuned! See full news story here-- http://bit.ly/2zPfq1H and Supreme Court of Florida case In re: Amendments to the Rules Regulating the Florida Bar (Biennial Petition) SC16-1961 here-- http://bit.ly/2j0klVr

Sunday, November 5, 2017

MEAC's Latest on Reporting Settlements

Florida's Mediator Ethics Advisory Council (MEAC) recently considered an inquiry on reporting partial settlements. A mediator writes in that the inability to differentiate between a final and partial agreement on the face of the report as permitted by the mediation procedural rules has created an ethical dilemma in the need to report to the court the actual outcome of the mediation and the status of the case. The practitioner complains it is not only misleading to the court to report only "agreement" or "no agreement," it is also time consuming for the judges, judicial assistants or case managers to read every agreement to determine if it is final or partial agreement as opposed to being able to look at the report. MEAC found that in civil and family law cases only, with the consent of the parties, the mediator's report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. To report anything additional without agreement of the parties, or add descriptors or modifiers to "agreement," "no agreement," or "partial agreement," would be providing information to the court, an action which is prohibited by the Mediation Confidentiality and Privilege Act, Sections 44.401-405, Florida Statutes. They did say, however, the rules do not restrict the parties from including in the written agreement their consent to the inclusion of additional language, descriptors, or modifiers in the mediator's report. See full advisory opinion here-- http://bit.ly/2j4YkZr

Wednesday, October 25, 2017

CFPB Arb Rule Appears Dead

Last night, Vice President Pence broke a 50-50 tie vote in the U.S. Senate, narrowly approving repeal of a rule that blocked financial companies from requiring consumers to resolve disputes with individual arbitration proceedings. The Senate vote followed earlier House approval and now goes to President Trump for his expected signature into law. The action is a defeat to the Consumer Financial Protection Bureau (CFPB), the federal financial industry watchdog group created under President Obama that approved the rule last summer with an effective date of March 19, 2018. It allowed consumer class actions against credit card companies and other financial institutions. The CFPB rule would have required sending a notice or to amend an arbitration agreement if entered into on or after March 19th and offered variable examples of language to use for agreements applying to multiple products or services, if not all were covered by the rule. According to the CFPB, there were two main parts: First, the final rule prohibited covered providers of certain consumer financial products and services from using an agreement with a consumer that provided for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service. Second, the final rule required covered providers involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau and also to submit specified court records. The bureau also adopted official interpretations to the proposed regulation. See full story here-- https://usat.ly/2h6FFIz and final rule language here-- http://bit.ly/2yKBRak

Wednesday, October 18, 2017

Mediation Week 2017

American Bar Association (ABA) Mediation Week is in progress and the theme this year is "Mediation, Civility and the Power of Understanding." As lawyers and mediators, we understand both the challenges and rewards of helping parties in conflict reach an agreement by getting past differences in positions, by understanding each other’s perspectives better, and by finding ways to get their important interests met while staying true to their values and belief systems. Programs held during ABA Mediation Week provide neutrals, advocates and policy makers with inspiration and tools necessary to bridge the gap that often prevents amicable resolution of disputes. Over the last few decades the field of alternative dispute resolution has grown tremendously, helping to clear dockets in the courts. The recognition that not all cases are well suited for the adversarial process and that there are multiple paths to justice is increasingly shared by attorneys, judges, and the public. ABA Mediation Week celebrates of the strides in institutionalizing mediation as one of several appropriate dispute resolution processes. Our firm is contributing by putting on a program this week at the University of Florida College of Law's Institute for Dispute Resolution. My topic is Language of Mediation in which my colleague and I look at destructive language patterns and modes of communication, including cultural metaphors and discourse analysis. Simply put, language has an impact on a subconscious as well as a conscious level. In the setting of conflict resolution, it offers concrete, positive alternatives to potentially destructive speech. With more awareness of the relationships among language, culture and diversity, a mediation participant’s sensitivity to the importance of structural and non-verbal aspects of communication should increase. See more on our UF program here-- http://bit.ly/2gklRkm