Tuesday, May 21, 2024

Florida Arbitrator Rule Comments Due 6/4!

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy has filed a petition with the Florida Supreme Court to amend the qualifications for court-appointed arbitrators to clarify the language of Rule 11.010, Florida Rules for Court Appointed Arbitrators, entitled Qualification, which provides the requirements for qualification as a non-binding arbitrator. Apparently, the impetus is that the current rule is internally contradictory, or at best confusing. The first sentence basically nullifies itself– “Arbitrators shall be members of The Florida Bar, except where otherwise agreed by the parties.” So, the parties can decide an arbitrator is anyone off the street despite the first clause in the sentence requiring them to be members of The Florida Bar. The second sentence of the current rule is vague or ambiguous. It says, “The chief arbitrator shall have been a member of The Florida Bar for at least five years” with no reference to good standing or whether the “five years” are immediately preceding or even consecutive. The third and final sentence then says, “Individuals who are not members of The Florida Bar may serve as arbitrators only on an arbitration panel and then only upon the written agreement of all parties.” By its terms, this sentence limits the seemingly absolute ”where otherwise agreed by the parties” in the first sentence of the rule and allows individuals who are not members of The Florida Bar to serve as arbitrators only on panels even “where otherwise agreed by the parties [from the first sentence].” Some members of the Arbitration Committee of the Alternative Dispute Resolution Section of The Florida Bar are considering a comment with concern for out of state lawyers. The proposed rule only adds permission for them to be the chief or sole arbirator “if agreed to by the parties.” Otherwise, they have the same opportunity to be arbitrators as under the first sentence of the current rule. The new language purports to maintain the protection of the qualification requirement for arbitrators, but allows the parties to continue to select arbitrators from a broad field. The petition is styled In Re: Amendments to the Florida Rules for Court-Appointed Arbitrators, and the court has assigned case number SC2024-0442. The court has announced a public comment period through June 4, 2024. See more here-- https://tinyurl.com/2p9mcx8r and https://tinyurl.com/bdhc43c4

Wednesday, April 24, 2024

SCOTUS Broadens FAA Transportation Industry Exemption

This month, The U.S. Supreme Court decided a case about franchisees who transported packaged baked goods, including Wonder Bread, from a warehouse and distributed them to local shops. The distributors contracted with Flowers bakery which incorporated arbitration agreements requiring “any claim, dispute, and/or controversy” to be arbitrated under the Federal Arbitration Act (FAA). They later sued Flowers for wage-and-hour claims under state and federal law. Flowers moved to compel arbitration under the FAA. The Franchisees argued that they fell within an exemption in Section 1 of the FAA: “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The federal district court granted Flowers’ motion, and the Second Circuit Court of Appeals affirmed. The Second Circuit reasoned that the interstate commerce exemption only exempts from the FAA’s coverage “workers involved in the transportation industries,” not breads, buns, rolls, and snack cakes. SCOTUS held that “there is no such requirement,” explaining that Section 1 “focuses on ‘the performance of work’ rather than the industry of the employer,” and that the statute “says nothing to direct courts to consider the industry of a worker’s employer.” The Second Circuit decided that an entity would be considered within the transportation industry if it “pegs its charges chiefly to the movement of goods or passengers” and its “predominant source of commercial revenue is generated by that movement.” But SCOTUS said that test would often turn on arcane riddles about the nature of a company’s services. For example, does a pizza delivery company derive its revenue mainly from pizza or delivery? Extensive discovery might be necessary before deciding a motion to compel arbitration, adding expense and delay to every FAA case. That “complexity and uncertainty” they said would result in litigation the statute seeks to avoid. See more here-- https://tinyurl.com/2yyykup5 and opinion here-- https://tinyurl.com/yc53j85p

Monday, March 25, 2024

Join us 4/2 for a Free Risk Assessment CLE/CME

Join me and my old friend and new UWWM colleague, Frank Bedell, for a free CLE Webinar at noon ET on Apri 2, 2024. We will explore a foundational understanding of risk assessments. The risk assessment is not about numerical accuracy. It is about reducing a complex claim environment to an easily understandable frame of reference so the client has a clear understanding of where they sit and the relative risk environment (understanding the litigation process and options for resolution). This includes finding agreement on the core claims, defenses, and issues, enough to make an informed valuation of the case. In the end, the objective of the risk assessment is alignment between client and counsel so a path forward can be responsibly outlined – and reevaluated as developments occur. We intend to offer some ideas in the problem-solving role of mediation and to encourage some innovation in the daily approach of settling lawsuits. This complimentary CLE is approved by the Florida Bar for 1.0 hour of general CLE credit. After registering, you will receive a confirmation email containing information about joining the webinar. Register here-- https://register.gotowebinar.com/register/2621743033060336982

Friday, March 22, 2024

ADR Rules & Policy Approves Language

This week, the Florida Supreme Court's ADR Rules and Policy Committee approved in its response regarding rule amendments (by a vote of 16 to 0) my suggested change submitted through the ADR Section Executive Council comment regarding revisions to Rule 10.340(d)(2) on conflicts of interest as follows: “(2) the mediator previously provided services (other than mediation services) for, or represented one or more of the mediation participants in, the matters current case or dispute at issue in the mediation; or…" The ADR Rules and Policy Committee found this narrows the scope of the proposed language. They agree since this provision addresses “clear” conflicts of interest, which are not waivable, the scope should only be broad enough to address the harm to be avoided. The Committee’s language, “matters at issue in the mediation,” is broader than my suggested language. The broader scope would require a mediator to decline serving as a mediator even if the potentially conflicting interests are not directly related to the case or dispute being mediated. For non-waivable conflicts of interest, a narrower scope may be preferable in order to ensure that parties have the widest latitude in selecting a mediator, while still ensuring mediator impartiality. Therefore, the Committee supported narrowing the scope through alternate language and has asked the court to adopt it and other changes pending a decision to grant oral argument. See more here-- http://tinyurl.com/eedckhhj

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/