Sunday, August 20, 2017

ABA Announces Theme For Mediation Week

The theme for this year’s American Bar Association (ABA) Mediation Week 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 will 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. Since 2011, the ABA declared Mediation Week as the third week of October, building on the prior efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR) which have traditionally celebrated conflict resolution during the month of October. ABA Mediation Week celebrates of the strides in institutionalizing mediation as one of several appropriate dispute resolution processes. Since this is an officially listed ABA Journal "Blawg," you will see more about ABA Mediation Week which will be held during October 15-21 this year. See more here-- http://bit.ly/2wuJ9Nx and http://bit.ly/2wmsqgg

Thursday, August 10, 2017

Army Corps Addresses Water Wars

A Special Master appointed by the U.S. Supreme Court previously recommended Florida’s claim for relief in the decades-long Water Wars case against Georgia be denied because the Army Corps of Engineers, which controls water flow through the region in a series of dams and reservoirs, was not directly involved in the lawsuit. In its brief, the Army Corps said this week it was possible the Court could impose a water-use cap on Georgia without requiring a change to its policies for handling the dams and reservoirs in the Apalachicola-Chattahoochee-Flint river system. As such, it may be possible to design a consumption cap that would provide Florida with additional water at some points without any alteration of the operations. Attorneys for Florida and Georgia tried the case before the Special Master late last year. 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. 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. The states were advised to settle out of court rather than live with a costly decision neither will like, and the Special Master has many times encouraged the sides meet in a good faith effort to reach a framework for settlement. This latest development could be the impetus for a deal. See more here-- http://bit.ly/2utNOfa

Monday, August 7, 2017

Join us 10/20 in Gainesville for CME/CLE!

My colleagues at Upchurch Watson White & Max Mediation Group and I will be presenting a multi-faceted eight-hour CME/CLE on the topics below in conjunction with the University of Florida Levin College of Law Institute for Dispute Resolution on October 20, 2017. Together, we will share our collective experience in the trenches of mediation. Presentations include: “Standards of Good Faith Conduct in Mediation – Mediators and Lawyers,” Larry Watson, Al Tetrault and Carl Schwait “What’s Going on in the Other Room,” Richard Lord and Jeff Fleming “Language of Mediation,” Howard Marsee and Lawrence Kolin “Negotiation Skills,” Judith Lane, Kim Sands and Alvin Capp “Designing the Mediation Process,” Rod Max, Dominic Brandy and Shelley Leinicke “Cross Cultural Mediation,” Ricardo Cata, Art Garcia and Richard Lord “Diffusing Volatile Emotions,” Michelle Jernigan and Brandon Peters “The Florida Mediation Movement – a Perspective,” John Upchurch, Larry Watson, Terry White and Rod Max Registration has not yet opened, but save the date please check back for more details soon and be sure not to miss this unique program! See our reminder link here-- http://www.uww-adr.com/Annual-8-Hour-CME-CLE--Live--7-8.html

Wednesday, July 26, 2017

House Votes to Rescind CFPB Arb Rules

A joint resolution of disapproval by Congress could nullify the “Arbitration Agreements” rule, 82 Fed. Reg. 33210 (July 19, 2017), just finalized by the Consumer Financial Protection Bureau (CFPB). The rules bar certain financial institutions from using contract clauses that provide for arbitration of disputes with customers to restrict participation in class-action lawsuits. The right of parties to avoid court and arbitrate contractual disputes comes from the Federal Arbitration Act of 1925. It provides that agreements to arbitrate disputes are enforceable. Decades after becoming a standard form of alternative dispute resolution, arbitration clauses were employed as a method to defeat class action lawsuits. The new rules by CFPB allow regular class-action lawsuits by consumers. The CFPB aims to prohibit financial companies from using mandatory arbitration clauses as a way to block class-action lawsuits. The new rules apply to most banks and nonbank lenders, payment processing companies, consumer reporting agencies, debt collection agencies and certain automotive finance companies. Pursuant to the Dodd-Frank Act, the arbitration rules will only apply to agreements entered into 180-days after the effective date and it will become fully effective on February 10, 2018. The Senate will take up the issue next via the Congressional Review Act, under which Congress may overturn a broad range of regulatory rules issued by federal agencies by enacting a joint resolution of disapproval within 60 days of the rules being announced. See more here-- http://bit.ly/2uCuiha and http://bit.ly/2uYGM4Q

Saturday, July 22, 2017

Comments Invited Following MEAC Rule Change

The Supreme Court of Florida recently adopted its Alternative Dispute Resolution Rules and Policy Committee's proposed amendments to Rule 10.910 of the Florida Rules for Certified and Court-Appointed Mediators regarding composition of the Mediator Ethics Advisory Committee (MEAC). The Committee’s petition follows another recent opinion adopting changes, In re: amendments to the Florida Rules for Certified & Court-Appointed Mediators, 202 So. 3d 795 (Fla. 2016). New Rule 10.910(b) (Appointment) provides membership of MEAC shall be composed of nine members, two from each of the four divisions of the Mediator Qualifications and Discipline Review Board (MQDRB), and one member from any of the four divisions. Additionally, Rule 10.910(c) (Membership and Terms) now requires that the membership of MEAC shall include one county mediator, one family mediator, one circuit mediator, one dependency mediator, one appellate mediator, and four additional mediators who hold any type of Florida Supreme Court mediator certification. Finally, Rule 10.910(e) (Opinions) is amended to allow the Dispute Resolution Center greater latitude in publishing advisory opinions of MEAC. Because the amendments to Rules for Certified and Court-Appointed Mediators are effective immediately and were not published for comment prior to their adoption by the court, interested persons must now file any comments with the court on or before August 21, 2017, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair then has until September 11, 2017, to file a response to any comments filed with the court. See full opinion here-- http://www.floridasupremecourt.org/decisions/2017/sc17-935.pdf

Friday, July 14, 2017

CFPB Arbitration Rule Final

This week, new arbitration rules were finalized by the Consumer Financial Protection Bureau (CFPB). The right of parties to avoid court and arbitrate contractual disputes comes from the Federal Arbitration Act of 1925. It provides that agreements to arbitrate disputes are enforceable. Decades after becoming a standard form of alternative dispute resolution, arbitration clauses were employed as a method to defeat class action lawsuits. Where parties agreed to arbitrate disputes, claims could still be brought, but on an individual basis in arbitration. The new rules by CFPB allow class-action lawsuits by consumers. The CFPB aims to prohibit financial companies from using mandatory arbitration clauses as a way to block class-action lawsuits, in which a large number of plaintiffs with similar complaints band together. This could result in higher litigation costs for banks, which they may offset either by raising the costs of consumer loan products or reducing services. Arbitration clauses have become widespread in recent years, aided by a string of court rulings that have limited the ability of consumers to file lawsuits. The agency’s action is the first significant check on arbitration since recent U.S. Supreme Court decisions that affirmed its widespread use. The new rules restore the ability of groups of people to file or join group lawsuits. The rules apply to most banks and nonbank lenders, payment processing companies, consumer reporting agencies, debt collection agencies and certain automotive finance companies. If Congress soon passes legislation neutering or killing the CFPB via the Congressional Review Act, it won’t be the first reversal of financial regulation. Until then, August 10, 2017 is the effective date. Pursuant to the Dodd-Frank Act, the arbitration rules will only apply to agreements entered into 180-days after the effective date and it will become fully effective on February 10, 2018. See more here-- http://bit.ly/2u13Aks and http://bit.ly/2vjGWAJ and http://bit.ly/2ulrGpQ

Friday, June 30, 2017

Summary Judgment in Arbitration

Arbitration has become formal of late and has been criticized by scholars as costly, time-consuming and subject to hardball advocacy. See Stipanowich, Arbitration: The “New Litigation” University of Illinois Law Review Vol. 2010, No. 1. This trend is not surprising given that career litigators, having been trained in the techniques of discovery and motion practice, are hesitant stepping outside their comfort zone. See JAMS Dispositive Motions in Arbitration, Kleinberg, Summer 2015. This includes the increasing filing of Motions for Summary Judgment, mostly following rule changes in 2013 by AAA allowing them. Winning a dispositive motion in any forum is difficult. For example, statistical analyses of federal courts in three large districts showed that summary judgments are granted less than 10% of the time. See Id. While arbitrators have the authority to consider motions for summary disposition, arbitrators must take great care in exercising this power. Avoiding increasing the costs of the proceedings and/or delaying its conclusion must be paramount. How sound is the motion and what is its likelihood of success? Are there issues of fact that would preclude ruling in favor of the motion? Will the motion, if granted, really reduce costs and expedite the arbitration, or will it lead to just the opposite result? In many cases, striking a few claims or defenses of several asserted would not serve to abbreviate the proceedings. Consideration of a motion not likely to succeed will waste time and money. The cost and dilatory impact of court-style motion practice, where the making of dispositive motions is the norm, is precisely what arbitration should avoid. See Reflections on the Use of Dispositive Motions in Arbitration By Edna Sussman and Solomon Ebere, NYSBA New York Dispute Resolution Lawyer, Spring 2011, Vol. 4, No. 1. Such motions can only be considered if facts upon which the dispositive motion is made are not in dispute. Granting dispositive motions could be viewed as depriving parties of a fair proceeding. Arbitrators must also ensure that they have carefully considered any discovery requests by the opposing party. If a party is denied requested discovery that is material to the motion and could alter the result, there would likely be a finding that the party was denied its right to a fundamentally fair proceeding. See Id. As an arbitrator, I am not against streamlining a case-- just be careful in considering the potential challenges to final awards that defeat the purpose of an efficient process with finality.