Tuesday, March 5, 2024

Nonsignatory Attorneys Bound by Settlement Agreement?

In a recent decision out of Florida's Fourth District Court of Appeal on cases 4D2022-3194 and 4D2022-3438, an attorney that did not enter an appearance, nor sign either settlement agreement at issue, authored a blog post commenting about the outcome of the underlying litigation and remarking negatively about one of the parties. The trial court hearing a claim for breach of contract then reasoned that the lawyer was bound by the settlement agreements' plain language, recognizing that Florida law does not require a signature as a prerequisite to be bound by a contract. The trial court also found that the blogging lawyer's undisputed conduct breached the settlement agreements' applicable confidentiality and non-dissemination provisions. On appeal, the sole issue as defined by the appellate court was a narrow one: whether the nonsignatory attorney to the settlement agreements that his clients signed, is bound by the settlement agreements because they include provisions purporting to bind the lawyer specifically by name or by his role as "counsel" or "attorney." The 4th DCA answered this question in the negative from a purely contractual standpoint. While it may be true that the lawyer negotiated the settlement agreements, transmitted them to his clients for their signatures, returned the settlement agreements to the attorney representing them in court, and benefited from the settlement agreements, these are customary actions performed by attorneys. Because the blogging lawyer did not sign the settlement agreements, is not named as a party, and did not manifest consent to be bound, the appeals court found that he is not bound, and the trial court erred by granting summary judgment in favor in the breach of contract lawsuit. See more here-- https://tinyurl.com/eye7xme9 and https://tinyurl.com/2np7rp4

Sunday, February 11, 2024

FL Mediator Rule Comments Due 3/4

The ADR Rules and Policy Committee of The Supreme Court of Florida has proposed revisions to the rules governing certified and court-appointed mediators. While the changes are outlined in the links below and mostly consist of revisions to form such as "shall" being replaced with "must," they do have some substantive changes as requirements in becoming a certified mediator and in the conflict rules, so please consider weighing in on these amendments by March 4th. You may comment by sending your correspondence to the ADR Committee Chair, Honorable Michael S. Orfinger, Seventh Judicial Circuit, Volusia County Courthouse, 101 N. Alabama Avenue, Ste. C-443, DeLand, FL 32724, morfinger@circuit7.org, and the OSCA Staff Liaison to the Committee, Thomas A. David, 500 South Duval Street, Tallahassee, Florida 32399-1927, davidt@flcourts.org, 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 ADR Committee then has until March 25th to respond to commments. It is always important to participate in rulemaking as a member of the bar and the ADR profession so that the Committee can get proper feedback for what is actutally going on in the trenches. See more here-- http://tinyurl.com/395rat8k and http://tinyurl.com/eedckhhj

Friday, January 12, 2024

Orlando Mediator Top 5

Since 2010, upon my becoming a full-time neutral, I have tried to bring awareness to our little corner of the world in Alternative Dispute Resolution (ADR) through blogging about mediation and arbitration online. Once again, the Orlando Mediator blog received the honor of being named in the top five and moved up to fourth among Alternative Dispute Resolution blogs out of sixty ranked on the web by traffic, social media followers, domain authority and freshness. I'm certainly in some good company on this list with established dispute resolution blogs around the world that actually have professional writers. Orlando Mediator is recognized by Feedspot among the best, including such distinguished blogs published by big names like Kluwer and even above those by prominent ADR organizations like the American Arbitration Association (AAA), The Chartered Institute of Arbitrators (Ciarb) and International Institute for Conflict Prevention & Resolution (CPR). Feedspot's experts chose Orlando Mediator as number four in the world for what their founder calls the most comprehensive list of Dispute Resolution Blogs on the planet! Feedspot says it is the internet’s largest human curated database of bloggers and podcasts. Their list combines RSS feeds allowing users to keep track of many different websites in a single news aggregator. I am humbled to know this labor of love for my chosen field is appreciated. I do enjoy keeping everyone informed on the latest trends and happenings in mediation and related fields through this outlet. Thanks again for your readership and support over the years! The full list is available here-- https://legal.feedspot.com/dispute_resolution_blogs/ and https://rss.feedspot.com/dispute_resolution_rss_feeds/

Saturday, December 2, 2023

Common Ground - Commercial Mediation

This month, I'm pleased to be featured in The Common Ground publication by the Alternative Dispute Resolution Section of the Florida Bar fall/winter issue. I have written about the the dynamics of mediating commercial litigation cases and the unique and different challenges of this type of mediation. Getting the proper parties to the table and adequate preparation of counsel and client are keys to success. I also explain the nuances of commercial mediation by discussing relationships, strategy, multi-party cases, impasse, mediated settlement agreements, and more. Most disputes result from the breakdown of a relationship. Commercial mediators are often able to ascertain the root of that breakdown. Just as in other types of cases, there are underlying relationship issues and while it is conventional wisdom to try and separate the personal from the business issues, it is often the interpersonal that needs to be overcome to get to a satisfactory resolution. For commercial litigation, the atmosphere at mediation should be more like negotiating a complex business deal than making closing arguments. Competitors may even end up becoming partners at the end. See the article along with the entire issue here-- bit.ly/ADR_FW23_CG

Sunday, November 5, 2023

SCOTUS to decide Coinbase Arbitrability

Last week, the U.S. Supreme Court granted cert and agreed to hear a cryptocurrency case that would move a dispute with users of a cryptocurrency exchange out of courts and into private arbitration. At issue is whether upon creating their Coinbase accounts, users agreed to resolve disputes through arbitration. A subsequent agreement related to a Dogecoin sweepstakes stipulated that any issues related to the contest must be addressed in state court. Users later accused Coinbase of violating California’s false advertising law by luring them into a sweepstakes offering Dogecoin prizes so they brought a class-action lawsuit in federal court. A federal district judge in California refused Coinbase's request to enforce arbitration, as the company argued its user agreements required. The Ninth Circuit Court of Appeals affirmed the trial judge's decision. In a related dispute last summer, the U.S. Supreme Court ruled 5-4 in favor of Coinbase. In that case, the justices supported Coinbase’s request to suspend customer lawsuits while seeking appeals to move disputes from courts to private arbitration. The review of the current case will likely impact the current status of arbitrability decisions by courts verus arbitrators and the utilization of arbitration clauses and enforcement of user agreements, especially in digital currency trading. When parties enter into successive contracts, and the first contains an arbitration agreement with a delegation clause but the second does not, who decides whether the first contract’s arbitration agreement governs any later disputes? This may finally resolve a regional circuit split. See more here-- https://tinyurl.com/ycy8xr67 and https://tinyurl.com/32s87z6t and https://tinyurl.com/2z57nbez

Wednesday, October 11, 2023

Mediation Week 2023 Mixers

The American Bar Association recognizes the third week in October as Mediation Week to educate the public about mediation. During Mediation Week, the ABA encourages all to recognize the importance of the work of neutrals, advocates, and policy makers and celebrate the strides we have made in institutionalizing mediation as a dispute resolution process. October 15-21, 2023 is Mediation Week in Florida under a proclamation of the Supreme Court of Florida. Mediation has been used by Florida courts for more than 30 years. Online Dispute Resolution now serves as an official option following the pandemic through sessions conducted with readily available remote attendance technology. Florida's Dispute Resolution Center continues to require specific standards set by the Florida Supreme Court in the areas of county, family, circuit, dependency, and appellate mediation during these virtual sessions. Mediation week brings annual focus on our dispute resolution work and highlights how individuals, administrative agencies, and businesses can use mediation to develop efficient and customized solutions to conflicts. Next week there are several mixers around the state hosted by members of the Alternative Dispute Resolution Section of The Florida Bar. We enjoy camraderie and hope to see you there! See more here-- https://flabaradr.com/mediation-mixers

Monday, October 2, 2023

Now Available as AAA Panelist

Orlando Mediator Lawrence Kolin is now available as a panel neutral for the American Arbitration Asoociation (AAA). Though Lawrence was a party-selected AAA arbitrator and mediator in the past, and has even presented educational programs in conjunction with AAA, he has officially become a member for purposes of resolving cases under the auspices of AAA. As a reminder, Mediation is used to resolve a broad range of conflicts within a variety of settings. Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Mediation agreements may be included as part of a contract that specifies what procedures will govern the mediation process. Alternatively, parties frequently agree to mediate following the onset of a dispute regardless of whether their contract stipulates mediation as a means of resolution, or when there is no contract between the parties. Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired. See more here-- https://tinyurl.com/bdzj99bw