Friday, January 19, 2018

Water Wars Reach U.S. Supreme Court

This month, attorneys for Florida and Georgia appeared for oral argument before the U.S. Supreme Court in an original jurisdiction case previously tried before an assigned Special Master back in 2016. A ruling in the decades-long "Water Wars" case came in the form of a recommendation favoring Georgia following the filing of post-trial briefs of each state. Florida seeks 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. The dispute focuses on the river basin which drains almost 20,000 square miles in western Georgia, eastern Alabama and the Florida Panhandle. The Chattahoochee and Flint rivers meet at the Georgia-Florida border to form the Apalachicola, which flows into the bay and the Gulf of Mexico beyond. Special Master, Ralph I. Lancaster, Jr., had strongly advised the states to settle out of court rather than live with a costly decision neither will like. The states mediated the case and even had a post-trial mediation. Florida still seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. The Sunshine State reportedly gleaned a ray of hope from the high court proceedings. “It’s common sense that that water, if left unattended, would flow down stream,” a testifying riverkeeper in Florida said, a sentiment that appeared to resonate with some of the justices. Justice Elena Kagan acknowledged that Florida had “common sense” on its side. “Can we agree that a cap at the very least would prevent the situation in Florida from getting worse?” Justice Ruth Bader Ginsburg asked. Chief Justice John Roberts also weighed in when confronted with the role of the Army Corps of Engineers, “It seems to me it's asking an awful lot of Florida to have to say: We know that the Corps is going to change things the way it benefits us.” A final ruling may not come for months. See more in stories here-- and

Sunday, January 14, 2018

SCOTUS Denies Cert on 5th DCA Ruling Against Arb

The U.S. Supreme Court declined last week to review an appellate ruling by Florida's Fifth District Court of Appeal (5th DCA) that found a patient arbitration agreement unenforceable because it ran afoul of state law, despite the health care provider’s warnings that the ruling could render other health care arbitration agreements here unenforceable. The U.S. Supreme Court refused to grant Kindred Hospital East LLC's certiorari petition, just the latest in a series of long-running battles over the enforceability of health care arbitration agreements. Kindred asked the U.S. Supreme Court to review the state appeals court’s refusal to force the arbitration of medical malpractice claims, saying the decision violates the Federal Arbitration Act. The fundamental dispute lies between state courts and the high court over the scope of the Federal Arbitration Act, as both sides in the dispute argue in their briefs. Kindred asserted if the ruling below was permitted to stand, every contractual agreement to arbitrate healthcare disputes in Florida would be unenforceable. The underlying Plaintiff had sued Kindred and several doctors for medical malpractice in state court after she suffered unspecified injuries during a 2012 stay at an Ocala hospital, a move Kindred argued was prohibited by an arbitration agreement signed by both parties. Florida's 5th DCA sided with the Plaintiff in the summer of 2016 and overturned a trial court’s ruling that compelled the parties to go to arbitration, per the terms of the contract. The appeals court found that the arbitration agreement was invalid because it selectively incorporated provisions from Florida’s own Medical Malpractice Act (MMA) that were favorable to Kindred and left out provisions favorable to patients. Specifically, public policy prohibits the enforcement of an arbitration provision that incorporates some, but not all, of the MMA's arbitration provisions. See more here-- and and

Saturday, January 6, 2018

FLABAR ADR Section Meeting 1/17/18 in Orlando!

Happy New Year from Orlando Mediator! Please join us as our Executive Council of The Florida Bar Alternative Dispute Resolution (ADR) Section convenes in Orlando during the bar's mid-year winter meeting. Founded some eight years ago, around the time I started this blog, the ADR Section was designed to provide a forum for lawyers and attorney-mediators interested in alternative dispute resolution and a place to share common interests, ideas and concepts. It is not for non-lawyer mediators. The ADR Section regularly puts on continuing legal education (CLE) programs, as well as provides advocacy in rule changes, legislation and commentary to the Supreme Court of Florida when dealing with proposed amendments in all forms of alternative dispute resolution. Any member in good standing of The Florida Bar interested in the purpose of our section is eligible for membership upon application and payment of the ADR Section’s annual dues (which are just $35) and can be added to your regular bar dues at the time of renewal. Any member who ceases to be a member of The Florida Bar in good standing shall no longer be a member of the ADR Section under its by-laws. Hope to see you at the Hilton Double Tree Orlando this month as we debate our position regarding important legislation that has been introduced for the next session which I discussed on this blog last month! More information on our meeting and the section can be found here--

Thursday, December 28, 2017

R.J. Reynolds to keep paying millions in FL Settlement

A Florida judge enforced a landmark settlement deal and ordered R.J. Reynolds to continue paying the state millions of dollars in tobacco settlement money, despite selling off major brands. The ruling comes nearly a year after Florida's Attorney General sued the tobacco company and Imperial Tobacco Group, a London-based company that took over North Carolina-based Reynolds American Inc. Reportedly, the A.G. said payments will ensure Florida's historic tobacco settlement is honored and the state receives the money it is owed. Florida was already owed $45 million when the suit was filed and could lose $30 million a year going forward. The judge found that until R.J. Reynolds has its obligation to pay Florida transferred to Imperial Tobacco Group, it must continue to pay. R.J. Reynolds and other large tobacco companies were part of a 1997 multibillion-dollar settlement with Florida to compensate the state for treating sick smokers. However, the company since sold cigarette brands Kool, Winston, Salem and Maverick to Britain's Imperial Tobacco Group, with neither company continued to make payments to the state. Pushed by then-Governor Lawton Chiles, Florida was one of the first states in the U.S. to seek damages from tobacco companies. The state's initial lawsuit sought reimbursement for Medicaid costs in the past and the future and contended that tobacco companies had engaged in unlawful actions and misleading advertising. Last year, the state was projected to receive more than $350 million from the settlement. See full story here--

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-- and ADR Section info at

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-- and

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