Thursday, December 27, 2012

China As Global Mediator

When the Chinese government decided to appoint a special envoy to the Middle East a decade ago, China's concerns about the peace process there became evident. Whether China's mediation efforts contradict its longstanding principle of non-interference in internal affairs is of special interest as China becomes more deeply involved in the resolution of regional and international conflicts, indicating its emergence as a mediator. Since the Arab Spring last year, China has used its veto power several times in the United Nations Security Council and played a constructive role in the mediation of the ongoing crisis in Syria. China has contributed a peacekeeping medical team in southern Lebanon and remains one of the six parties involved in the talks on the Iranian nuclear issue. Because of the size of China's economy and its growing influence around the world, the once-isolated country has evolved as global mediator, seeking governance necessary for its own development. China was quick to urge the Syrian government and all parties concerned to halt the violence. China's former practice was to call for restraint from the parties and for peaceful resolution through dialogue-- not to take action. Mediation is now consistent with China's continuing role as a permanent member of the UN Security Council, which means it can no longer do nothing. This includes efforts in the Korean Peninsula and Africa, as well. China has been relatively absent from contemporary international mediation initiatives since the current republic's founding in 1949. However, it is now driven by increasing international stature, coupled with intensification of unresolved and newly emerging conflicts that threaten world security. See story -

Thursday, December 6, 2012

Mediations On The Waterfront

From the west coast of Florida to the West Coast, mediations have been ordered in two brewing waterfront controversies. Here, a lawsuit threatens to delay St. Petersburg City Council's allocation $5.4 million to begin work on a new pier. Circuit Judge Amy Williams ordered the city and a citizens group to mediation to come up with ballot language in a claim against the city that seeks a public referendum on the $50 million project. Also at issue is whether to save a 40-year-old inverted pyramid sitting on the 90-year-old pier structure. The city council voted 7-1 in 2010 to demolish the Pier-- a landmark structure on the downtown waterfront since it was constructed in 1973-- after engineers determined the 1,000-plus pilings undergirding it are coming to the end of their useful life. Meanwhile, in Los Angeles, both sides in the strike crippling the ports of L.A. and Long Beach have agreed to federal mediation. Workers belonging to the International Longshore and Warehouse Union went on strike last month against an employer group of shipping lines and terminal owners, causing most cargo container terminals at the nation's busiest seaport complex to shut down. The union says the employers transferred work from higher-paid union members to lower-paid employees. The employers dispute that claim, saying they offered the workers full job security and generous wage and pension increases. Mediation will surely produce sink or swim results in these disputes. See news items at and

Monday, December 3, 2012

NHL Faceoff following failed Mediation

National Hockey League owners and NHLPA member players will meet tomorrow, resuming labor talks following failed efforts by federal mediators last week. In hopes of reaching a new collective bargaining agreement and ending a player lockout, owners and players will meet alone, face- to-face, without league and union officials or mediators. Some owners attending the meeting have not previously done so which is seen as encouraging. Hockey's labor dispute has already resulted in cancelling more than a third of the NHL regular season, including the Winter Classic and the All-Star Game. It is very unlike the Federal Mediation and Conciliation Service to throw up its hands, saying it would be not productive to continue discussions, and that they would rather call the parties back together when they thought the time was right. Seems the parties to this one thought otherwise. We'll see if that move of self-determination ends the dispute or the season. See more in Bloomberg story at

Thursday, November 29, 2012

Do Not Track Mediator Appointed

In an international effort to give consumers control over collection of their online data, law professor Peter Swire was named mediator by the World Wide Web Consortium (W3C). The international group is developing standards that allow Internet users to keep their online activities private from advertisers. Coming up with a global standard for “Do Not Track,” a computer browser setting permitting users to signal they don't want their browsing activities tracked for marketing purposes, is proving tough amidst a fight between industry execs and privacy advocates. Parties on both sides welcomed the move, but remain doubtful Swire could bring opponents to agreement, especially at a time when some are questioning whether the W3C is the appropriate forum. It is reported that Swire, former chief counselor for privacy at the Office of Management and Budget, hopes to strike a balance palatable to both sides and views the effort as creating the digital equivalent of the Do Not Call list. Even as negotiations continue, newer versions of browsers such as Internet Explorer and Chrome already provide Do Not Track settings for their users. However, in the absence of accepted global standards, ad networks and data brokers are not yet honoring the browser tracking flags. See story at

Monday, November 26, 2012

Egypt's Justice Minister emerges as mediator in decree dispute

Just after mediating a cease-fire between Hamas and Israel, President of Egypt, Mohammed Morsi, claimed power beyond review of any court while drafting a new constitution, which was met with protests reminiscent of the Arab Spring that empowered him. Morsi defends his decree, insisting that it is merely temporary. Egypt's Justice Minister now looks to prevent escalating the battle between Egypt's new Islamist leaders and the institutions of its past secular government. Justice Minister, Ahmed Mekki, is an influential former leader of the movement for judicial independence. Mekki is focused on the scope of the President's decree, which opponents say could be a first step towards a new Islamist autocracy. Morsi doesn't want Mubarak-appointed judges interfering. Mekki is encouraging a much narrower edict, rather than asserting sweeping immunity from judicial review. Mekki already met with the high council overseeing Egyptian courts which was receptive to his proposed compromise. With each side mired in suspicion of the other, a deep mistrust must be overcome. The first attempt to form a constitutional assembly was annulled by judges, and the latest version has been plagued by complaints that Islamists are ignoring minority concerns. Today, Morsi is to meet Egypt's highest judicial authority, the Supreme Judicial Council, and it is reported the council has already hinted at compromise-- likely due to Mekki's mediation efforts. See news items at and

Tuesday, November 20, 2012

Can Mediation Save Twinkies?

As the nation mourns the loss of Hostess treats, a bankruptcy judge eager to save thousands of jobs directed the parties to mediate in a last-ditch effort to avoid winding down the company. Hostess Brands and the Bakery, Confectionery, Tobacco Workers and Grain Millers Union, which represents over five thousand Hostess workers, are meeting today with a mediator to narrow their differences toward a labor agreement. If mediation succeeds, it could prevent the liquidation and save 18,500 jobs. The 82-year-old baking company filed for Chapter 11 again this year, just three years after emerging from bankruptcy. At the time, the company said it was unable to pay its debts and needed to make deep cuts in labor costs to survive. Hostess was able to reach a new contract with the Teamsters, its largest union. But talks between the company and the bakery workers deadlocked, and the union went on strike with management declaring plans to liquidate last week. Judge Robert D. Drain of the U.S. Bankruptcy Court for the Southern District of New York pushed for one last round of talks. At a hearing yesterday, the judge expressed dismay that neither side had exhausted all efforts to avoid liquidation. Some thought the company was bluffing that a buyer was going to come save the company. Potential suitors include Flowers Foods and Grupo Bimbo, the world’s largest bread-baking company which already owns parts of Entenmann’s, Thomas’ English muffins and Sara Lee. Perhaps this effort can save jobs and a favorite of America's sweet tooth. See full story here-

Monday, November 19, 2012

Hamas leader on truce prospects: "Maybe never"

U.N. Secretary General Ban Ki-moon stopped in Cairo on his way to Israel, joining Egyptian mediated talks between Hamas and Israel with a goal of bringing about a cease-fire. Continued instability in the region, including civil war in Syria, protests against the crown in Jordan, and the rise of militants in Libya, could be impacted by the recent fighting in Israel to further ignite the region. Hamas leader-in-exile Khaled Meshaal showed no signs that an agreement was imminent, seeking demands, but saying it is Israel's responsibility to stop. While participation in talks is an encouraging sign, it seems positional bargaining could lead to intractable positions and escalation. After existing as a pariah at odds with the Palestinian Authority, and with Syria and Iran as its primary allies, Hamas is emboldened by recent support. Hamas is armed with stronger rockets and now receives backing from key regional governments formerly allied with Israel who have recently changed to Islamist control, such as Egypt and Turkey. Asked if Hamas wants a truce with Israel, Meshaal responded, "Maybe today or tomorrow," he said, "or maybe never." See

Thursday, November 15, 2012

Apple and HTC bury handset hatchet, will others?

Apple and HTC this week announced a broad ten-year licensing agreement that settles all lawsuits between the smartphone makers. Last spring, a Delaware court ordered Apple and HTC to meet before Labor Day in the hopes that they could shake hands and put an end to an escalating legal battle through mediation. Apple's CEO, Tim Cook, while reportedly not a fan of lawsuits, did take the Samsung patent case to trial this year. HTC of Taiwan was eager to eliminate handset shipping delays stemming from Apple's court wins. The global settlement to their patent battle includes current and future patents held by both companies. HTC agreed to pay Apple $6 to $8 in licensing fees for each Android phone it sells, estimated at as much as $280 million to be paid to Apple annually from HTC's expected shipments. Apple first sued HTC for infringing on patents related to the iPhone in 2010, as part of the war against Google Android phones and its manufacturing partners declared by Apple’s founder Steve Jobs. Apple and HTC have since fought in courts around the world, with Apple winning multiple decisions. Industry experts comment that the terms of this agreement could be used as a blueprint for future settlements with other Android manufacturers, including Samsung and Motorola. See more at and

Thursday, November 8, 2012

Mediation in French Google Content Case?

Google is open to the idea of appointing a mediator to help end its dispute with French media sites that desire Google pay for links to their content. French President Francois Hollande warned his government might introduce a bill to force search engines to pay for media content. French government officials proposed nominating a mediator to help dialogue between the internet company and news editors following a meeting with Google's Eric Schmidt. Google said it would exclude French media sites on search results if France were to adopt the bill requiring search engines to pay to link to news websites. Italian and German firms also demand Google share some of the advertising revenue from user searches for news on websites. Google is also fighting a billion dollar plus tax bill from France, but Schmidt remains hopeful of a settlement by year's end, and maintains compliance with tax laws in all countries of operation. A Paris appeals court already rejected a request by Google to invalidate search and seizure of documents by French tax authorities. Apparently, Google's European headquarters are based in Ireland which reduces the amount of tax it pays. See more at:

Friday, November 2, 2012

More major league sports mediation-- NHL?

This week,'s Pierre LeBrun reached out to prominent U.S. federal mediator George Cohen to seek his opinion on the state of the NHL lockout, due to his participation in ending both the NBA and NFL lockouts last year. About a quarter of the NHL hockey season has already been cancelled due to the lockout. As expected, the Federal Mediation and Conciliation Service (FMCS) director declined the interview request. However, LeBrun says Cohen mentioned he'd been in contact with both parties in the NHL-NHLPA negotiations. Fans have inquired whether a mediator could help dislodge the stalemate over NHL labor talks. However, NHL deputy commissioner Bill Daly only commented the parties had been in touch with the FMCS and didn't think that the introduction of a mediator into the process would necessarily further the process. As for the players' union, the NHLPA reportedly hasn't been in contact with FMCS since July. So far, according to players, the union seems willing to stick together, believing that the league is trying to wait and see if players crack. Others want NHLPA leadership back negotiating with the NHL to explore flexibility from the league on key bargaining points. See: and

Monday, October 29, 2012

Pipeline mediation effort backfires

Former U.S. Senate Majority Leader, George Mitchell, stepped down from potentially mediating settlement talks over a deadly Northern California pipeline explosion after state regulators set up a private process criticized by several parties as an unfair, "backroom deal." California's Public Utilities Commission appointed the former senator earlier this month to mediate Pacific Gas & Electric Co.'s (PG&E) fine for the blast. San Bruno and San Francisco objected because he and his law firm previously had represented public utilities. This is perhaps unfortunate, as those with industry experience actually may be more helpful to these specialized negotiations. What seemed to really prompt the concern was was the decision to appoint him without prior consultation of the parties. Of course, any conflicts perceived should have been disclosed in advance of the mediation. Over the past couple of years, PG&E faced grueling public hearings over potential malfeasance leading up to the 2010 blast, which killed eight people and destroyed 38 homes in San Bruno, just south of San Francisco. Read more:

Thursday, October 25, 2012

50th Anniversary of the Middle District of Florida

Tonight in Orlando, The Historical Society of the United States District Court for the Middle District of Florida held a 50th Anniversary Dinner sponsored by members of the Middle District Bar and the Historical Society through the Bench Bar Fund. Senior U.S. District Judge George C. Young was in attendance and said it was his first event outing in many years. Geographically the Middle District of Florida (FLMD) stretches over 350 miles from the Georgia border on the northeast to south of Naples on Florida’s southwest coast. Three of the six largest metropolitan statistical areas (MSAs) in the state, namely, Tampa, Jacksonville and Orlando are within the district. The Clerk’s office headquarters is centrally located in Orlando with additional divisional offices in Tampa, Jacksonville, Fort Myers and Ocala. Demographically over 10 million people, more than 57% of the state’s population, reside within the district. Fifteen of the twenty most densely populated counties in the state are in the Middle District. In all, thirty-five of Florida’s sixty-seven counties make up the Middle District. Florida’s population has increased by about three million each decade since 1970 and now stands at approximately 19 million permanent residents, a 171% increase over the 1970 estimate of 6.8 million. Additionally this state, and the Middle District in particular, is a primary tourist and convention destination adding millions of visitors to those numbers. The Middle District of Florida remains one of the busiest federal district courts in the nation. I am proud to be a member of the MDFL bar and federal certified mediator roster. Read more at: and see my alternate site:

Monday, October 22, 2012

Armstrong Arbitrations

Though the Lance Armstrong saga seems about over, arbitration of U.S. Anti-Doping Agency (USADA) charges continues for some, including the former team director, Johan Bruyneel, who is challenging the agency. Cycling’s governing body Union Cycliste Internationale (UCI) today stripped Lance Armstrong of his 7 Tour de France titles and banned him for life, following a USADA report from accusing him of leading a doping program on his U.S. Postal Service and Discovery Channel teams. UCI's President announced that the federation accepted USADA’s report on Armstrong and would not appeal to the Court of Arbitration for Sport. Eleven former teammates testified against Armstrong, who denies doping based on his having passed hundreds of drug tests. Armstrong chose not to fight USADA in one of the agency’s arbitration hearings, arguing the process was biased against him. Sponsors Nike and Trek have since dropped him, and Armstrong also stepped down last week as chairman of Livestrong, the cancer awareness charity he founded. The cyclist could still face further sports sanctions and legal challenges, including civil lawsuits from ex-sponsors or even the U.S. government. Read more:

Thursday, October 18, 2012

Conflict Resolution Day during Mediation Week

Today is Conflict Resolution Day which promotes awareness of mediation, arbitration, conciliation and other creative, peaceful means of resolving conflict in businesses, communities, governments and the legal system. Likewise, it is Mediation Week and October has become a time to promote and celebrate peaceful conflict resolution practices worldwide. Dedicated dispute resolution practitioners are helping to educate the public about mediation and other innovative conflict management processes. The American Bar Association's "ABA Mediation Week” is held every year in conjunction with many other national, state, and local organizations, including the Association for Conflict Resolution (ACR). The State of Florida has also issued a proclamation in recognition of promoting mediation as an alternative to litigation while observing Mediation Week in the Sunshine State. The ABA has wonderful ADR links in its Mediation in the Mainstream themed toolkit found here: The ACR has a dedicated page with great information here:

Friday, October 12, 2012

NYTimes to mediate with Newspaper Guild

The New York Times and the Newspaper Guild of New York will mediate to hammer out a contract according to Arthur Sulzberger Jr., the paper's publisher, who broke the news to staff in an email (though there was apparently some dissatisfaction that the reporters were scooped on the story about the coming mediation). This attempt at ADR comes after employees staged a brief walkout and representatives for management walked out of a negotiating session. One correspondent praised the development, explaining to his colleagues that a mediator listens to both sides, leaning on each of them to give "bit by bit until a deal is reached." Officially, the company and the union have agreed to mediation "in order to maximize the potential of reaching a new collective bargaining agreement.” The chosen dispute resolver, primarily an arbitrator, Martin Scheinman, supposedly broke up a bar fight once by convincing one combatant his cue stick was too expensive to smash upon another. The Guild says it proposed Scheinman and tells members “A mediator cannot force a settlement, but instead uses persuasion to try to bring the parties to agreement. A mediator generally does not come up with his own proposals, but rather tries to push the parties closer to their respective positions. Neither side is bound by the mediator’s suggestions or proposals." According to the internal communication, "the union proposed Sheinman not because he’s pro-union but because he’s said to be super-smart. He’s a private mediator – he is paid by both sides to try to bring them to a deal. There are Federal mediators too, but the one assigned to this area apparently is not respected much." It seems there may be internal discord among NYT digital and print contract members, all of whom need to vote to approve a new deal. See stories and

Monday, October 8, 2012

DRC Updates Mediator Renewal Process

The Dispute Resolution Center of the Supreme Court of Florida's Office of the State Courts Administrator (DRC) today put out information regarding a revamped mediator renewal process. Explained as a change complying with the Court's efforts to reduce paper and the DRC's initiative to provide efficiencies to increase productivity and reduce processing times for applications and renewals, beginning in January 2013, the DRC will no longer be mailing out renewal approval notices or providing renewal seals when your mediator certification has been renewed. When your renewal has been approved, it will be reflected on your record on the Florida DRC website at and your renewal date will appear as updated through the next two year period. A confirming email that your renewal has been approved will also be sent. Beginning in March 2013, the DRC will no longer be mailing out renewal applications. Mediators who are due for renewal will receive an email notification three months prior to renewal that it is time to renew along with a link to complete a generic downloadable renewal form. The form will then need to be completed, notarized and mailed to the DRC with appropriate renewal fees and the CME Reporting Form. Requirements of CME remain the same.

Sunday, October 7, 2012

Judicial Management Council Created

The Supreme Court of Florida on its own motion this year created the Judicial Management Council of Florida, an advisory body designed to assist the court in identifying trends, potential crisis situations, and the means to address them. The so-called JMC will assist the court with forward-looking vision to better fulfill its mission to protect rights and liberties, uphold and interpret the law, and provide for the peaceful resolution of disputes (could this mean alternative dispute resolution?). Council members are to maintain an awareness of current issues, policies and trends related to the judicial branch in order to anticipate and respond to changing priorities. They will be responsible for reviewing the charges of the various court and Florida Bar commissions and committees, as well. JMC members are primarily judges (though there are a few bar and public members) who will be recommending consolidation or revision of commissions and committees, methods for the coordination of the work of those bodies. Applications are due tomorrow from members of The Florida Bar in good standing who are interested in JMC membership. Information on appointment to the council by application is available at as well as specific information about the council composition, as well as detailed background information, an application form, and instructions for completing the application. This, along with recent changes to the Rules of Judicial Administration that trump Civil Procedure Rules, seems to be consistent with the high court asserting itself.

Tuesday, September 25, 2012

Mediation ongoing in NFL Referee Dispute

Last weekend's failed negotiations between NFL Commissioner Roger Goodell and locked-out NFLRA game officials could not have been more evident than in Monday Night Football's botched calls. The ongoing labor dispute between owners and officials may have given refs more leverage than anticipated due to fan and commentator outrage, not to mention the football players. A league memo by general counsel told the officials' union and a federal mediator who joined talks Sunday that it is prepared to make reasonable compromises on economic issues in exchange for operational changes the league believes will improve the quality of officiating. However, the biggest economic sticking point is a traditional pension plan for existing officials, which the league wants to eliminate and replace with a 401(k) plan. The memo said the officials’ most recent offer includes a make-up bonus for lost wages from the lockout and a reduction in disciplinary authority over officials. See and listen

Saturday, September 8, 2012

Arbitrators throw out NFL suspensions

An NFL arbitration panel threw out the League’s suspensions of four players involved with the New Orleans Saints bounty or pay-to-injure case. A one year suspension of linebacker Jonathan Vilma was overturned, along with shorter suspensions to Scott Fujita, Anthony Hargrove and Will Smith, according to the National Football League Players Association (NFLPA). League Commissioner, Roger Goodell, suspended the players last May, but the latest decision apparently doesn’t affect suspensions handed down to Saints coaches. This was an appeal of an earlier grievance decision by Arbitrator, Stephen Burbank, that upheld the Commissioner's authority under the collective bargaining agreement to impose "conduct detrimental" discipline on players who provided or offered to provide financial incentives to injure opponents. The appeals panel of arbitrators consisted of retired San Francisco federal Judge Fern Smith, retired New York federal Judge Richard Howell, and Georgetown Professor James Oldham. The decision could impact consolidated federal lawsuits brought against the NFL by linebacker Vilma and the NFLPA on behalf of the other three players until Commissioner Goodell decides whether to reissue punishment within his power. U.S. District Judge Ginger Berrigan was spared from having to decide before Sunday on a TRO requested by the players. Interestingly, earlier in the week, Judge Berrigan lamented failure of settlement talks wrote she was concerned competing agendas among lawyers on all sides in the dispute were undermining the interests of the players-- asking whether it made more sense for Smith, Fujita and Hargrove to have separate lawyers, rather than the same lawyers representing the NFLPA. The players informed the judge in documents filed that they were comfortable with union representation. See stories- and and and and NFLPA statement-

Wednesday, September 5, 2012

Orlando Mediator ABA Blawg 100 Amici

Readers of my Orlando Mediator law blog or official ABA "blawg" as they are known can help it become part of the Blawg 100 by submitting a fan comment via this online form-- The American Bar Association will include some of the best comments in their Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.Friend-of-the-blawg briefs are due no later than Sept. 7, 2012. 100 Amici guidelines ask readers to send messages via the link above on behalf of this blawg. There is no specific criteria to be guaranteed a spot on the Blawg 100. A blawg’s whole can be greater than the sum of its parts, and a blawg that never fails to post that daily update, has a beautiful design and an unwavering topical focus can very often have less of an impact than another blawg that is less consistent on all fronts. Thanks for your votes for Orlando Mediator!

Saturday, September 1, 2012

Electronic Everything now in Effect!

Effective September 1, 2012, E-Discovery amendments to the following existing Florida Rules of Civil Procedure drafted in my subcommittee are effective: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at-- Additionally, mandatory E-service begins in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by E-mail under Florida Rule of Judicial Administration 2.516 is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served, and the sender’s name and telephone number. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. E-mail service will be mandatory for attorneys practicing in remaining divisions on October 1, 2013. See E-Service opinion at-- Finally, though civil ECF is well-established in Orange County, new electronic filing requirements adopted by the Fifth District Court of Appeal begin today by Administrative Order-- Those who practice in this area should register with the appellate court's eDCA system-- Incidentally, I tried uploading a Mediation Report via eDCA this morning and there are presently no upload categories for documents appellate court-appointed neutrals file, such as reports and evaluations. I have contacted the clerk about this with my filing.

Thursday, August 30, 2012

Inadvertent Disclosure of Mediation Statement not grounds for Disqualification

Cursory review of a confidential mediation statement sent to opposing counsel does not require disqualification according to the Third District Court of Appeal in Moriber v. Dreiling (Case No. 3D12-300, decided 8/22/12). The receiving lawyer claimed she did not realize the statement was confidential before skimming it and immediately destroyed it, eliminating unfair advantage in the case. The court found events that transpired in the case "not attributable to unethical conduct” but rather “illustrate some of the adverse consequences resulting from the injection of technology into today's modern and busy law practice.” Ethical rules require immediate return upon notification of such mistakes. An assistant inadvertently attached a confidential mediation statement an email rather than a summary judgment motion as she had intended. The lawyer was out of town when she received the emails on her cell phone, and did not open them until staff printed out a copy. It was argued the attorney violated Florida Rule of Professional Conduct 4-4.4(b). That rule dictates that “A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Interestingly, the trial court appointed a Special Master, who found that the mediation statement was essentially a position paper stating obvious uncontested facts, having no informational advantage. See full synopsis here-

Monday, August 13, 2012

A moment on International Mediations

Mediators of the diplomatic kind are making moves in several international crises. Last month, Kofi Annan departed Syria, but diplomacy continues to be the international community's main focus there. Replacement of Annan with Algerian diplomat Lakhdar Brahimi is being floated. Apparently, Brahimi still wants to know how much room he will have to maneuver, how much international backing he can expect to receive and whether his job is to merely reach a cease-fire (as he achieved in Lebanon) or to tap into his expertise in creating new governmental systems. Uniting the opposition groups under a single leadership has eluded all former mediators including the Turkish foreign minister and intermediaries appointed by Saudi Arabia, Qatar and the Arab League. A developing war of attrition could work in favor of a new U.N. mediator, who could exploit the fatigue of both sides and bring about a cease-fire. See story Likewise, in Mali the lead mediator in regional efforts to end unrest in Mali told rebels that they must cut ties to terrorist movements like al Qaeda before any peace talks can begin. Islamist militant groups control about two-thirds of Mali after hijacking a secular rebellion by Tuareg nationalists earlier this year. Burkina Faso Foreign Minister, Djibril Bassole, wants to promote a dialogue to increase the likelihood of successful negotiations. The U.N. Security Council last month endorsed political efforts by West African leaders to end the unrest in Mali, but stopped short of backing a force. See Finally, in Zimbabwe, South Africa's President, Jacob Zuma, is to visit this week in his capacity as Southern African Development Community (SADC) mediator. His goal is to ensure the country is on the route to a fair, intimidation-free election. Zuma was appointed chief mediator on Zimbabwe in 2009 and no date is set for Zimbabwe's next elections, expected to take place within the next 12 months. A fragile unity government was formed in Zimbabwe in 2008 between President Robert Mugabe (who has ruled since independence in 1980) and opposition party leader Morgan Tsvangirai. The union followed a highly-contested presidential poll and post-election violence.

Tuesday, July 24, 2012

E-Everything coming to Florida Courts

Effective September 1, 2012, E-Discovery amendments to the following existing Florida Rules of Civil Procedure become effective: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). These rules will now include Electronically Stored Information or ESI. See Florida Supreme Court E-Discovery amendments opinion at-- and The Florida Bar News story from forthcoming August 1, 2012 issue quoting me-- Additionally, mandatory E-service begins September 1st in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Under Florida Rule of Judicial Administration 2.516, service by E-mail is deemed complete when sent. E-mail service is made by attaching a copy of the document to be served in PDF format. The E-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the E-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served, and the sender’s name and telephone number. The E-mail and attachments together may not exceed 5 megabytes in size or must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. When the rules take effect on September 1, attorneys practicing in the criminal, traffic, and juvenile divisions of the trial court may voluntarily choose to serve documents by e-mail under the new procedures, or they may continue to operate under the existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013. See E-Service opinion at-- Finally, all 67 county clerks of court have been directed to accept E-filings through the statewide e-portal in the civil divisions and new electronic filing requirements will become effective in the civil, probate, small claims, and family law divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, on April 1, 2013. As civil ECF is well-established in Orange County, this is nothing new. Next, the new electronic filing requirements the Court adopts will become effective in the criminal, traffic, and juvenile divisions of the trial courts, as well as for appeals to the circuit court in these categories of cases, on October 1, 2013. See E-filing opinion at--

Thursday, July 19, 2012

Super Bowl Tix Suit v. NFL to Proceed without Cowboys

Following a failed mediation earlier this summer, U.S. District Judge Barbara M.G. Lynn of Texas threw out all claims against the Dallas Cowboys and owner Jerry Jones today, ruling that a Super Bowl game ticket constitutes a contract between the NFL and a purchaser. Some of the lawsuit was already dismissed and many ticket holders accepted the NFL’s offer of compensation. The NFL and lawyers for the ticket holders still suing engaged in mediation previously, followed by a motion claiming the NFL negotiated in bad faith, purposefully delaying proceedings for months while allegedly falsely claiming to be truly interested in resolving the case. Fans moved to other seats were offered refunds or a ticket to a future Super Bowl, while those not seated at all were offered their choice of $5,000 cash or $2,400 and a trip to a future Super Bowl, with airfare and hotel included. Most of the 3,200 fans affected accepted. The league must also defend fraud in the inducement claims brought by fans whose seats had obstructed views at the 2011 Super Bowl Game at Cowboys Stadium during the game between the Green Bay Packers and Pittsburgh Steelers. Some 475 ticket holders who watched the game on video screens and another 2,800 fans that were given new seats or kept waiting outside the stadium can also pursue their claims against the NFL. Simms v. Jones, Case No. 3:11-cv-00248, U.S. District Court, Northern District Texas; See stories - and and and

Wednesday, July 18, 2012

Madoff Mediation

Attorney General Kamala Harris of California and the liquidator of Bernard Madoff's defunct firm will mediate to pursue a settlement according to Manhattan U.S. Bankruptcy Judge Burton Lifland. Madoff trustee, Irving Picard, asked Judge Lifland to stop California's $270 million lawsuit against an alleged beneficiary of the Ponzi scheme, arguing that only the trustee can collect money for Madoff's victims. Harris contends her suit can proceed because she's using state police power to protect against consumer fraud. Interestingly, Picard did not protest when New York Attorney General Eric Schneiderman struck a $410 million settlement deal with Madoff feeder-fund operator Ezra Merkin. However, Picard sued Harris in January, alleging her lawsuit filed on behalf of Californians interferes with the collection of assets needed to help compensate Madoff victims. See story here -

Thursday, July 12, 2012

Bankrupt Cali Cities and Mediation

With 15 percent unemployment since the recession and a foreclosure rate among the state's highest, San Bernardino is likely to become the third California city to file for bankruptcy this year. Stockton filed for bankruptcy June 28 after months of mediation apparently failed to yield an agreement between the city and its creditors, including bondholders and labor unions. Mammoth Lakes, a small ski resort town, filed for bankruptcy last week due to a $43 million legal judgment against it. Unlike Stockton and Mammoth Lakes, however, whose financial problems were well-known before those cities filed for bankruptcy, San Bernardino Mayor Patrick Morris claims he didn't know about the awful financial situation until a few weeks ago. Under a California law passed this year, cities must hire a third-party mediator to negotiate with employee unions and creditors before filing for Chapter 9 bankruptcy protection. However, cities can avoid the mediation process if they instead declare a fiscal emergency, which San Bernardino plans to do. The U.S. Bankruptcy Judge overseeing Stockton's bankruptcy, Elizabeth Perris, just appointed her judicial colleague, Christopher Klein, to mediate that case and ordered the city and its creditors to meet next month. On the city's first day in court last week, Judge Klein said that for the Stockton bankruptcy to be successful, the city will need to propose "a consensual plan of adjustment." See stories at - and

Thursday, July 5, 2012

E-discovery rules in FL at long last!

Effective September 1, 2012 are amendments to seven Florida civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). This is the culmination of a six-year effort initially chaired by me and with the help of members of my subcommittee and the Civil Rules Standing Committee of the Florida Bar. These rules will further allow for the ability for neutrals to play a role in dispute resolution of ESI issues in state court cases. See full opinion and new rules here - and bulletin quoting me "This is the culmination of a rigorous effort to modernize procedure in Florida to include electronically stored information,” attorney Lawrence Kolin, of Winter Park, former chair of the e-discovery rules, told the Association of Certified E-Discovery Specialists® -

Tuesday, July 3, 2012

New gTLD Objections and Dispute Resolution

Because recent new generic top level domain names or gTLDs opened by ICANN will likely lead to violations of existing trademarks, an objection period and dispute resolution process have been implemented. The objection period is provided to protect existing rights and interests. However, objections must be filed directly with selected Dispute Resolution Service Providers or DRSPs, not with ICANN. Grounds for objection include: “String Confusion,” i.e., if confusingly similar to existing TLD or another applied-for GTLD, to be filed with ICDR; “Legal Rights" objection, to filed with World Intellectual Property Organization or WIPO; “Limited Public Interest” objection to be invoked when the applied-for GTLD string goes against generally accepted legal norms of morality and public order under principles of international law, to be filed with the International Center of Expertise of the International Chamber of Commerce; and finally, “Community Rights” objections, e.g., substantial opposition to a GTLD application from a significant portion of the community that the GTLD string is targeting, filed with the International Center of Expertise of the International Chamber of Commerce. Within 30 days of the closing of the objections filing window, ICANN will post Dispute Announcements and notify DRSPs to begin the objection proceedings. For details on the procedure, including fees and response deadlines see - and

Thursday, June 28, 2012

RMFM Rebooted: Orange County Foreclosure Mediation Program

The so-called RMFM has just become the OCFM or Orange County Foreclosure Mediation Program, administered by the Orange County Bar Association (OCBA). With the originally mandated statewide program abruptly halted by Chief Justice Charles Canady of the Supreme Court of Florida, Ninth Circuit Chief Judge Belvin Perry, Jr. took initiative and by Administrative Order 2012-06, created a new residential mortgage foreclosure program with the OCBA as Program Manager. The stakeholders, including lenders and consumer advocates, committed to new features of the program, such as that the overall cost has been reduced to $500 per case and homeowners pay $250 to participate. There was no fee previously and the hope is to attract serious borrowers who, by having skin in the game, are committed to the process and staying in their homes. Homeowners can first attend free seminars on the process and perceived benefits of participating. There will also be collaboration with the Legal Aid Society providing personal, specific education for borrowers and pre-screening for lenders. Mediators will be drawn exclusively from Orange, Osceola and Seminole counties, but now only receive $150 per session-- half the previous rate. The program mediators will be assigned by computer and there is no minimum number guaranteed. The entire process has been expedited to operate within 100 days. For more information, see: and

Saturday, June 23, 2012

Florida Bar ADR Section Update

Yesterday, I attended the Executive Council meeting of The Florida Bar's ADR Section, first formed in 2010. As outgoing chair of the Orange County Bar Association's ADR Committee, which I petitioned for and founded last summer, I reported on the progress of our local bar group and the programs put on in the inaugural year. Much like the OCBA committee, the big bar's section provides a forum for lawyers interested in alternative dispute resolution and to share common interests, ideas and concepts. The section also provides a source for advocacy involving all forms of alternative dispute resolution and makes formal recommendations to the Supreme Court of Florida Committee on Alternative Dispute Resolution Rules and Policy. Any member in good standing with The Florida Bar interested in the purpose of the section is eligible for membership. Among the proposals for the next bar year, the ADR section plans to amend its by-laws to include inactive members of the Florida Bar who need not be Certified Mediators. A discussion was had about the various newly created residential foreclosure programs in circuits around the state since the disbanding of the state's uniform program. Also discussed, were efforts to bring about a change in CME reporting to the Dispute Resolution Center which would push reporting from two to every three years and in sync with one's Florida Bar reporting date for CLE. Another proposal seeks to make DV credits only part of requirements for Family Law Certified Mediators. The section is exploring hosting its own website, social media pages and a possible listserv. The section will also seek to implement guidelines for amicus involvement in rules cases. A survey will be sent to the over eight hundred members of the new section, asking for feedback. Finally, the section voted to donate $1,000 to The Florida Bar Foundation as a gesture of support for the organization which recently suffered a loss in funding and remains a crucial part of pro bono efforts throughout the state. More information here- and

Friday, June 22, 2012

E-Service and E-Filing to be mandatory in FL

In a pair of opinions, the Supreme Court of Florida formally adopted proposed amendments to the Florida rules of court to implement mandatory electronic filing procedures for all documents filed in Florida’s courts. The proposed amendments represent a significant and important step toward the goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing or e-filing. Also in furtherance of this goal, in a separate, related case the justices adopted amendments to the rules of court to require e-mail service of pleadings and documents between parties. All 67 county clerks of court have been directed to be prepared to accept e-filings through the statewide e-portal in the civil divisions by July 1, 2012-- but a subsequent filing by the E-Filing Authority indicates several clerks are still experiencing difficulties that would prevent them from accepting electronic filings on that date. Any clerk may submit a request with the Florida Supreme Court to delay the effective date of these rules in any division or court. If such a request is granted, an Administrative Order will be issued and published. However, mandatory e-service under Florida Rule of Judicial Administration 2.516 will begin July 1st for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases. Service by e-mail is deemed complete when the e-mail is sent. Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. Given the delay from oral argument last year to passage of these e-rules, it is possible electronic discovery rule amendments in Florida argued earlier this year may be adopted later than expected. That would be consistent with comments made regarding the need for educating the bench and bar on the proposals to include ESI in existing civil rules. See full opinions here - and UPDATE: 6/26/12 - Florida Supreme Court sua sponte amends its opinion to change the mandatory date for e-mail service in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, from July 1, 2012, to September 1, 2012 - SECOND CORRECTED OPINION: 6/28/12 -

Wednesday, June 20, 2012

Mediation may keep Joint Strike Fighter production going

Lockheed Martin, biggest supplier the Pentagon, and the International Association of Machinists and Aerospace Workers (IAM) agreed to meet federal mediators to settle a strike that began over eight weeks ago over pension and health benefits. Apparently, the Federal Mediation and Conciliation Service (FMCS), an independent federal agency, initiated the move after getting in touch with both sides. Lockheed, under pressure from the Pentagon to reduce its labor and pension costs, hired scabs to maintain production at the plant where it builds F-35 fighter jets. The parties are reportedly hopeful the FMCS can provide the independent perspective that often produces the framework for a resolution and are said to welcome the opportunity to find a resolution to the strike. The National Labor Relations Board (NLRB) last week dismissed three unfair labor practice charges filed by the union against Lockheed. The company appreciated the decision, saying its negotiators had bargained in good faith with the union. See story here -

Friday, June 15, 2012

Chinese iPad? Confucius say: Mediate

Apple's newest iPad is still unavailable in China. Apparently, the Higher People’s Court of Guangzhou began hearing an appeal by Apple following a Chinese lower court's ruling in favor of a Chinese tech company, Proview, that claims ownership of the trademark in China. The court’s foreign affairs office states the court will withhold judgment as long as both parties continue talking. Proview’s lawyer confirms mediation will continue, though a “big gap” remains between the two sides, according to reports. Proview seeks up to $1.5 billion. Revenue from China accounts for almost twenty percent of Apple’s total. In China, mediation is a way of life and litigation is seen as a last resort, embarrassing to honor and the community. Harmony, professed by Confucius to be valuable in governance and social order, is a principle to which Chinese culture adheres. Mediation by a third party has a long history dating back as early three thousand years ago, during the Xi Zhou Dynasty. Perhaps this tradition will help resolve a modern technology dispute involving one of the world's most coveted gadgets. See more information at and UPDATE: 7/2/12 - Apple pays $60 million to settle iPad trademark dispute in Chinese high court-mediated deal See story

Thursday, June 14, 2012

AMR gets TRO in suit to stop NMB scheduled union election

AMR Corp.'s American Airlines (AA) sued the National Mediation Board (NMB) to block it from holding a union election. The airline claimed under a new federal law that the union needs support from at least half of its ten thousand agents before holding an election among the largest group of nonunion workers at AA. Yesterday, U.S. District Judge Means found that AA was likely to prevail a lawsuit seeking to stop the election among passenger-service agents, and granted a temporary restraining order (TRO) on voting that was set to begin next week. The Communications Workers of America sought to represent AA's agents. The union had joined the case on the mediation board's side. AMR Corp. and AA sued the U.S. mediation board in federal district court because Congress raised the minimum support to fifty percent in an aviation bill signed into law in February. The mediation board sided with the union and decided this month to go ahead with an agent election. AMR Corp. and AA filed for bankruptcy protection last year and are seeking to void contracts with current unions of pilots, flight attendants and mechanics. A federal bankruptcy judge in New York is scheduled to rule on that request next week. See stories at and UPDATE 6/22/12: The court found the National Mediation Board used the wrong standard when it authorized the election. As such, the NMB “acted in excess of its delegated authority,” according to U.S. District Judge Means. The ruling comes as the airline seeks $1.25B in annual labor cost reductions as part of its bankruptcy reorganization. U.S. Bankruptcy Judge Lane postponed a ruling to next week on whether AA can scrap union contracts. See

Friday, June 8, 2012

Did mediation save Triple Crown?

This week, a federal mediator settled a labor dispute at Belmont Park that threatened I’ll Have Another’s chance of winning thoroughbred racing’s first Triple Crown in more than 30 years. New York's Governor Cuomo urged both sides to reach agreement in a dispute over maintenance and starting gate workers at the racetrack. About 150 union members at NYRA’s tracks have been working without a contract for over a year after the previous contract was given a one-year extension. The workers authorized a strike to begin today, a day before the running of the Belmont Stakes, the final jewel in the Triple Crown. Now it's up to I’ll Have Another to become the first horse to win the coveted crown since Affirmed in 1978, so place your bets. See stories - and UPDATE Noon 6/8: Guess not - would-be champion scratched from race -

Sunday, June 3, 2012

Time Out for NFL Refs

NFL Referees and the National Football League are headed to federal mediation in negotiations over a new labor agreement. Reports are that the NFL has already instructed its scouts to begin preparing for the possibility that replacement officials could be used during the upcoming season if a deal is not struck. Last year, the Federal Mediation and Conciliation Service (an independent agency whose mission is to preserve and promote labor-management peace and cooperation) mediated negotiations between the league and the players’ union before the lockout. The league and the players did not return to that FMCS mediation, though negotiations resumed when litigation ensued, ultimately producing a 10-year labor agreement completed last summer. A federal court-appointed mediator oversaw settlement talks after players dissolved their union and filed an antitrust case against owners. In this matter, the refs and league are apparently intent on reaching a deal without litigation. See article - and FMCS announcement

Sunday, May 20, 2012

Apple and Samsung CEOs to mediate Patents

CEOs of Apple and Samsung are set to mediate at a San Francisco federal courthouse tomorrow in the U.S. Northern District of California case of Apple, Inc. v. Samsung Electronics Co., Ltd. The U.S. Court of Appeals for the Federal Circuit found last Monday that the district court erred in deciding that Apple failed to show that it was likely to succeed on the merits, which means Apple may yet press for an injunction to block the sale of Samsung tablets. While the trial court considers the claims, Apple's Tim Cook and Samsung's Choi Gee-sung have been directed by a federal judge to appear for a court-supervised mediation. Apple and Samsung are bitter rivals in the electronics marketplace. While Samsung's smartphones and tablets run Android and compete with Apple's iOS products, Samsung is also a key component supplier to Apple. Apple has accused Samsung of infringing on the iPhone and iPad through products that run on Google's operating system, and Samsung has counter-sued on claims that Apple infringed its patents. The case is set for trial this summer. Magistrate Judge Joseph Spero will preside over the high-stakes IP mediation. I blogged about this case last fall, when Steve Jobs died. I still believe that a face to face meeting of the ultimate decision makers can benefit these companies and allow them to move on together in the mobile marketplace. See articles - and

Wednesday, May 16, 2012

Moses or Solomon?

A federal judge ordered mediation with a magistrate judge in a lawsuit about whether the Ten Commandments can be displayed at a Virginia high school. U.S. District Judge Urbanski of Roanoke ordered the school board and the unnamed student and parent into mediation to see if a compromise can be reached over the biblical display. It's been reported that the judge suggested a deal could be made where the first four of the Ten Commandments are left off the display. This is unusual in cases of this type, which are typically all or nothing. For instance, in a pending Florida case, the Eleventh Circuit Court of Appeals recently heard arguments regarding Dixie County's Ten Commandments, where litigants are fighting over whether or not a six-ton model of the Ten Commandments in front of the county courthouse is unconstitutional and whether an anonymous plaintiff has standing in that matter. In the VA case, the judge issued a protective order allowing the parent and student involved in the case to remain anonymous during the suit which apparently came to fruition by a mutual agreement due to the threat of hostility by the community. The case involves a four-foot tall display of the Ten Commandments first hung on school walls following the Columbine school shooting in 1999. The display was taken down over a decade later by school officials, after receiving complaints, and replaced with a copy of the Declaration of Independence. In 2011, the Ten Commandments display was replaced following a backlash from parents and pastors. The display was then removed again after a month by school officials for no stated reason, prompting students to walk out of classrooms in protest. Will the tablets be split down to six, remain at ten or will there be none at all? See stories and

Friday, May 4, 2012

Megaupload Mediation

Controversial file-sharing services called cyber-lockers allow users to upload files to a server, which provides remote and secure storage of user content. Megaupload's users share their files with others and are encouraged to contribute content, which is often copyrighted. Services like this offer free limited access and further unrestricted use for a fee. U.S. District Judge Liam O'Grady recently directed lawyers from both sides of an Eastern District of Virginia case involving data which has been managed by service provider Carpathia Hosting since Megaupload was dismantled by authorities earlier this year to engage in mediation sessions in order to resolve the matter of archiving or deleting the information which had been stored by Megaupload users. The ruling temporarily preserves the infringing data which Carpathia claims it has had to spend as much as near $10K per day to maintain. Because the site went dark and Megaupload is no longer paying for server upkeep, but files are potential evidence of pirating, the hosting company wants relief while millions of legitimate users worldwide still want access to their data. In ancillary proceedings in New Zealand, Kim "Dotcom" Schmitz, the founder of controversial website, has been awarded back some of his previously confiscated fortune after it was revealed that a search warrant obtained by authorities was illegal. He and a number of the company's executives face extradition to America for trial. The issue of mediating litigation holds and preservation of evidence and related costs is a hot one in terms of ESI. This case brings to mind some recent entries of mine on E-Discovery mediation, as well as cost shifting and judge-directed ADR. It will be interesting to see if the rights of third-parties are respected in the process. See recent news items here: and and

Thursday, May 3, 2012

Orlando Mediator blog now an official ABA "blawg"

Just a brief post to announce that the American Bar Association has officially listed this blog as one of its law blogs or "blawgs." The ABA's Blawg Directory is promoted by the distinguished ABA Journal online and is touted as a comprehensive directory of continually updated law blogs. Help this blawg reach the "Blawg 100," an annual listing of the top one hundred blawgs in the law, now in its fifth year. Details will be posted when voting opens this year and the hope is that this blog will be the first devoted to mediation to make the list. Thanks for your readership and continued support of this endeavor which is a labor of love published in the interest of expanding the use of mediation and alternative dispute resolution in the 21st century. My mediation practice began in 2001 and continues to push the envelope in creative use of ADR. As an example, recent topics include the use of early ESI mediation to avoid protracted E-Discovery battles, allowing parties in litigation to re-focus their cases on the merits. I look forward to continuing exploring new topics on this blawg as trends develop to keep professional neutrals and advocates alike abreast of the latest in this field. Orlando Mediator can now be found as this URL on ABA:

Thursday, April 26, 2012

Neutrals may ease anxiety over Florida’s new E-discovery rules

This podcast featuring my commentary just in from an interview with the Association of Certified E-Discovery Specialists (ACEDS) Editorial Director, Robert Hilson: On March 7, the Florida Supreme Court heard argument on proposed E-discovery rules for state cases, the first such rules for the fourth largest state. The court has put them on fast track, and could approve them by the end of the year. The rules will affect the state’s diverse legal and corporate community and its 63,000 active attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to e-discovery. Neutral third parties, such as special masters, mediators and referees, may be able to assist in these instances. These so-called “neutrals” can shape discovery plans, allocate costs and suggest and create efficiencies that did not exist. Their services are not limited to grappling with old or new rules, or to discovery disputes. Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar committee that helped craft the e-discovery rules the Supreme Court is considering. In this ACEDS podcast, he tells how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. “I try to focus parties on the merits and try to get them off using e-discovery as a sword or shield,” says Kolin. “Mediation is an avenue that can present parties with significant cost-savings if performed early enough in the litigation.” Podcast introduction: Listen to .mp3 here:

Monday, April 23, 2012

Appellate Mediation Frustration

Florida led the way in the establishment of alternative dispute resolution procedures to accommodate resolution without trials or the use of the judiciary. In the late 1980s, Florida passed comprehensive court-annexed mediation statutes and the past quarter century has seen enormous growth in the use of mediation as a practical, efficient alternative to traditional litigation for conflict resolution. In addition to the retention of self-determination and capability for creative settlements-- not to mention decreased costs-- courts celebrate reduced dockets, as well as increased levels of satisfaction. As such, appellate courts got into the game, initially with the U.S. Eleventh Circuit Court of Appeals, and then a pilot program by Florida's Fifth District Court of Appeal (DCA) over a decade ago. There was also a program at the First DCA which was dismantled for budgetary reasons and other programs that have since gone. However, recent Florida Rules of Appellate Procedure (found beginning at 9.700) now provide the parties with the option to mediate if not already referred to mediation by the appellate court. These procedures account for tolling and other deadlines and deal with appearance and authority of parties at mediation. Today, at the Orange County Bar Association, we had the privilege of listening to Judge Thomas Sculco, Barbara Eagan and Stacy Ford for a CME on the frustration the process can bring about. Though the success rates are still around 35% for cases settling through mediation after a notice of appeal is filed, there are more challenges to the process given the posture post-trial than in cases that have not yet tried. Appellees are difficult to motivate, but there are some tools appellate mediators can use to move the parties' positions beyond discussions involving splits of authority and the proverbial "careful what you wish for" new trial. A hallmark to successful appellate mediation can be as simple as the ability of the parties to avoid precedent and craft a solution to the conflict that is built around their unique interests and needs. With the advent of Certification of Appellate Mediators by the Supreme Court of Florida, more mediation in the DCAs should be taking place. However, it is up to practitioners and dispute resolvers to educate the judiciary and promote the process beyond courts that have traditionally recognized its benefits.

Wednesday, April 4, 2012

E-Neutrals and FL ESI rules

I spent the last couple of days at the national annual conference of the Association of Certified E-Discovery Specialists (ACEDS). There were many vendors, attorneys and even court personnel attending. Of particular interest, was a pilot program developed by Clerk of the U.S. District Court for the Western District of Pennsylvania, Robert Barth. That court has identified special masters and E-neutrals as fulfilling the need to effectively address issues presented by the preservation, collection and production of relevant Electronically Stored Information (ESI) during the litigation process. The parties in those cases reportedly benefit from the appointment of Electronic Discovery Special Masters (EDSMs) in appropriate cases. Any findings of fact or conclusions of law reached by the EDSM will be presented to the court as a report and recommendation, to which the parties have the opportunity to object, prior to a de novo review by the court (see details at - Florida's draft rules do include a case management topic of optional appointment of special magistrates in the event such issues need to be referred. This was discussed during an ACEDS panel I served on with my successor on the Florida Civil Rules Committee, Kevin Johnson. We also spoke on the likelihood of a decision from the Supreme Court of Florida concerning the proposed amendments to the Florida Rules of Civil Procedure and any time frame for implementation. Given the largely friendly reception during oral argument, it appears adoption of the language is imminent, but the forthcoming opinion could delay the effective date of the rules, given the Court's concern for educating the bench and bar.

Sunday, April 1, 2012

Fairly Illegal

So I finally watched some of season two of television's hot mediator show, Fairly Legal, on USA. Last year, the show debuted with a coffee shop hold-up mediation on the fly which was cute and effective, much like its snarky mediator, Kate Reed. I actually posted a few of California's ethical rules on the Facebook fan page last year (hoping writers or producers would notice) when things went a little far afield, which is most of the time. From the get-go this year, Kate inserts herself into a case tampering with a juror, threatening a witness and playing advocate, investigator and counselor at law. Oh well, just another day at the fictional law office. Though the acting is decent and the truth seeking protagonist fun and unpredictable, the mediation has become a backdrop to a dram-com. Now that Kate's boat is blown up, she's living in the law firm that fired her and her rocky marriage to the would-be DA appears finally over. The disputes she resolves remain eclectic as ever. Her partners continue to push the boundaries, like pushing conflicts of interest to the curb for the almighty dollar. So why do lawyers' reputations continue to suffer in the eyes of the public?? At least there is some light shed on the benefit of moving on with life by settling in favor of protracted litigation.

Saturday, March 31, 2012

Baseball Mediation: Cuomo as Mets-Madoff Mediator

While his son, Andrew, celebrates obtaining a NY budget with time to spare, Mario Cuomo is coming off a victory of sorts of his own-- having successfully mediated the controversy with the Madoff trustee in time for baseball season. Originally appointed as mediator in the bankruptcy case seeking more than a billion dollars from the franchise, Cuomo got the Mets owners to pay $162 million in fictitious profits, which could be offset by their claims as victims of the massive fraud. Judge Rakoff acknowledged Cuomo's role in mediating the settlement before trial and attorneys involved said it couldn't have been done without Cuomo's help. Cuomo, now 79, still serves as of counsel for a major law firm and is listed on a register of mediators for the federal court. The former politician said he brings the negotiating skills he honed as NY governor to the task. "A mediator makes sure the process is going forward," Cuomo said. "He meets. He cajoles. He argues." See articles on the case Picard v. Katz et al., U.S. District Court, SDNY, No. 11-03605 and

Wednesday, March 21, 2012

"Imported from Detroit" Mediation

In a countersuit of sorts stemming from clothing company Pure Detroit's use of "Imported from Detroit," the T-shirt maker in Michigan sued Chrysler, claiming that Chrysler's campaign amounts to false advertising since the featured vehicles are built elsewhere. U.S. Magistrate Judge Hluchaniuk has given the parties until April 3rd to report on whether a mediation session is successful. Apparently, the Chrysler 200, 300 and Town & Country aren't built in Detroit. The automaker sued the T-shirt company last year over its use of the phrase first used to promote Chrysler 200 during Super Bowl in an ad featuring Eminem. Chrysler has a website to sell clothing and other products with the "Imported From Detroit" logo and that merchandise isn't being made in Detroit, either. Chrysler says it donated proceeds of its sales of the merchandise to several Detroit charities. U.S. District Judge Tarnow previously refused to grant a preliminary injunction blocking the sale of the shirts by Pure Detroit. Often the outcome of early motions for injunctive relief can prompt mediation. It seems likely this case will go away, given the lack of serious justiciable issues. See story here-

Thursday, March 8, 2012

Arbitration under fire on NPR

According to recent news reports and The Diane Rehm Show today, an ever growing number of companies are including 'forced' or mandatory arbitration clauses in their contracts. What consumers and job seekers give up when they sign these contracts is their right to sue. Her guests included Professor Morrison, of GW Law School, who cited Kaiser's California health care plan arbitration that is working well. (But when asked by Ms. Rehm, he didn't know whether his own contract with the school includes and arbitration clause). Andrew Pincus, who represented AT&T in the Concepcion case before the Supreme Court, a former Assistant to the Solicitor General in the United States Department of Justice, who prevailed. The Court upheld the clause in that case on federal preemption grounds. Mr. Pincus felt the small claims represented by the plaintiff's class provided an incentive to utilize the process in bringing legitimate litigation. Richard Naimark, SVP of the American Arbitration Association, defended the process which he said has been growing the past dozen years. AAA's neutrals are independent third parties not beholden to anyone according to Mr. Naimark and have existed since the Federal Arbitration Act was passed in 1925. The process has evolved into consumer and employment rules which have differing fee structures, with businesses paying most fees. He argues arbitration is cheaper and easier than access the courts. AAA is taking a neutral position on the issue of mandatory clauses and primarily focuses on consensual arbitration. He maintains a common-sense explanation is all that is required on forms to get before an arbitrator. Christine Hines, a consumer and civil justice advocate at Public Citizen's Congress Watch wishes people to understand access to the courts. She seeks restoring rights of choice to the consumer, who unknowingly gave up their rights, when a dispute arises. She argues there is no transparency and that no public knowledge of corporate misconduct is bad for consumers. She is also worried about repeat business for private arbitrators favoring the corporation. However, arbitrators are required to disclose factors affecting neutrality according to AAA. Ms. Rehm said the process feels constricting and that transparency is lacking with regard to achieving justice which is not true in the courts. Mr. Naimark said courts are under budget stresses and are increasingly difficult for average people to navigate such that justice is best served through arbitration. Finally, though unlikely to pass, the guests discussed the introduction of the Arbitration Fairness Act last year as S. 987 and H.R. 1873 calling for arbitration to be agreed upon by both parties after the dispute arises and not just inserted in the fine print of often one-sided adhesion contracts. Listen here: and also read an NY Times editorial on this subject here:

Wednesday, March 7, 2012

Supreme Court of Florida Considers E-Discovery Rules

In a development that may lead to the use of more special magistrates and special masters deciding discovery disputes, this morning, the Supreme Court of Florida heard oral argument in case SC11-1542 on the amendments to the Florida Rules of Civil Procedure concerning E-Discovery. The proposed amendments add electronically stored information or ESI into existing rules and are mostly modeled on the federal rule changes implemented by Congress in 2006. Following a multi-year effort by the Civil Procedure Rules Subcommittee on E-Discovery that I formed in January 2006, these rules were presented to the Florida Bar Board of Governors and sent on to the court for comment and adoption. Justice Barbara Pariente, with her iPad prominently displayed on the bench, began to pepper Chair, Kevin Johnson (whom I tapped as my successor upon my terming off the Civil Rules standing committee) shortly after he began. She engaged in congratulating the seemingly unanimous approval by the members of the Bar in the run-up to making these rules official. Justice Pariente continued with questions regarding her experience as a litigator in producing documents in products cases. Mr. Johnson explained that the only difference from the federal rules is the lack of a mandatory meet and confer early in the case. However, there is an available category found in the state case management rules 1.200 and 1.201. Justice Quince was concerned over the format of production of the items requested by a litigant and that those decisions are left to the trial judge. Justice Perry was concerned about the party having the best expert to hide the ball with an inexperienced line judge. Doug Caldwell of the Rumberger firm appeared to applaud the effort, but on behalf of the Florida Defense Lawyers, did not feel the federal rules go far enough. He cited efforts in the federal rules advisory committee to remedy the inefficiencies experienced in that system. Mr. Caldwell echoed Henry Trawick’s comments filed about the burden on the producing party. His anecdote of a ‘mom and pop’ store with an iPhone was met with skepticism from Justice Pariente. Justice Polston pointed out the existing rules allow for trial judges to argue scope in 1.280. Retired Circuit Judge Ralph Artigliere, with whom I’ve taught at OSCA’s Florida Judicial College, commented on preservation and the existing case law for spoliation that developed out of products and malpractice cases. He added that Business Courts can make local rules more specific to manner of production. He also mentioned the change in culture reflecting a burden on lawyers to understand the evidence their clients may have and responsibility to the court, Education of the bench and bar was discussed and Justice Lewis went as far as talking about mandatory court education or bar CLE to be coordinated by the budget-less Civil Rules committee. Not a clue as to the timing of implementation of these rule amendments was given during the thirty-seven minute argument, though I liked Justice Pariente's emphasis on wide agreement of committee and bar to pass rules. Fingers crossed! See complete oral argument at:

Monday, February 27, 2012

ENE - Early Neutral Evaluation

Perhaps because of the still struggling economy or the realization during the recession that the cost of litigation is not trivial, Early Neutral Evaluation (ENE) as a form of ADR has returned. This process, popular out West, is an offshoot of mediation that puts the neutral in the role enhancing direct communication between the parties about their claims and supporting evidence. ENE can provide an assessment of the merits of the case by a neutral expert in an early "reality check" for clients and lawyers. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management planning. A confidential exchange of factual information can help facilitate settlement discussions, once requested by the parties. A neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel. Following presentations, the evaluator identifies areas of agreement, clarifies and focuses the issues and encourages the parties to enter into any stipulation or agreement that is feasible, including settlement. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. The parties' formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but hopefully with the litigants better informed as to the risks, work still necessary and the monetary aspects of continuing on a track toward trial. A new publication from the ABA this year on ENE outlines the process -

Thursday, February 23, 2012

There's an App for that-- Mediation

According to its developer, the PictureItSettled App helps negotiators map successful negotiation strategies, calculate moves, and graph paths to optimum settlements. The app-based software, just launched this year, is designed so litigants analyze their positions. This may not necessarily help the neutral facilitator (who may make actually better use of this as a quick reference record of negotiations). Midpoints are over-emphasized by litigants in my experience, as is bracketing as a tool, though admittedly there are times when looking at these are appropriate. By entering moves, users plot successful negotiation strategies using proprietary algorithms in the app. Currently available on the Apple iOS and Android market in a free application, the "Lite" version tracks the dollar moves in negotiations and time intervals between offers. The app then analyzes the offer history and graphs the effects of such moves on the likelihood of reaching a settlement by testing the patterns on each side. It apparently projects the expected results in measures of dollars and time commitment, which it is claimed assists parties in negotiation visualize if and when they should settle for "optimum outcome." See site:

Friday, February 17, 2012

Six Month Mediation?

A friend of mine flies for Air Canada. He has been posting about the intense labor dispute between pilots and the airline this past week. Apparently, the airline will continue operating while a six month mediation ensues. Air Canada and its pilots' union agreed to submit to a an extended mediation process while they negotiate so there will be no disruptions in service. The positions of the parties have been characterized publicly as "really far apart." While acquiescing to a lengthy mediation, it does not mean either side is surrendering its right to give notice of a strike or lockout during the six months. But the sides state that prospect is highly unlikely in the short term as the mediation process gets underway. Typical issues of pay, pensions and a new low-cost carrier plan, will be discussed. Reportedly, Air Canada has dedicated about 60 staff and nearly 30 consultants and lawyers to devise a plan for a low-cost airline and is seeking a foreign airline as a minority partner. It just seems like an awful long time (without typical external pressures like losing the season such as in the recent sports league mediations) to get a deal struck. See article -

Thursday, February 9, 2012

$25B Settlement on Foreclosure Abuses

Today, federal officials announced a $25 billion settlement with the five largest mortgage lenders over foreclosure abuses. The deal requires the banks to reduce some loans, send out small checks to foreclosed folks, and refinance mortgages for underwater borrowers. Its being billed as the largest settlement involving a single industry since big tobacco in the late '90s. Under the agreement, which was reportedly negotiated for 16 months, B of A, Chase, Wells Fargo, Citigroup, and Ally will reduce loans for nearly a million households. They will also send checks for two grand to about 750,000 Americans who were improperly foreclosed upon. All but one state agreed to the deal-- Oklahoma, whose AG opposed the deal. Lenders that violate the deal could face $1 million penalties per violation and up to $5 million for repeat violators. Interestingly, homeowners can still sue lenders in civil court on their own, and federal and state authorities can pursue criminal charges. The settlement only applies to privately held mortgages issued from 2008 through 2011. Loans owned by Fannie Mae or Freddie Mac are not impacted by this settlement. See news item from Fox here-- and website for the public here--

Saturday, January 28, 2012

Why did things go better out West?

Just as Florida ended its mandatory foreclosure mediation program, the Justice Department praised Nevada's foreclosure mediation program in a recent report saying it provides a road map for other states to follow in addressing the continuing fallout from the housing crisis. Nevada, much like Florida, has some of the highest numbers of foreclosure filings in the country. In the report, data recorded by program staffers shows that since that program started, 13,813 Nevada homeowners participated. Of those, nearly 3,900 homeowners obtained loan modifications that allowed them to stay in their homes. More than 2,000 others agreed to foreclosure alternatives, such as short sales. Much like Florida, remaining participants of failed mediations blamed lender required documents or representatives without authority to take action. A drop-off in filings following robo-signing scandals may have skewed success, as well. However, the Justice Department apparently evaluated how states addressed the foreclosure crisis and singled out Nevada's program for developing policies and procedures other states could implement. See article -

Monday, January 16, 2012

Starting tomorrow in Seminole: 300 Foreclosures in 3 days

Tuesday, Seminole County's Chief Circuit Judge says he'll hear three days of foreclosures at 30 seconds a case, though last year Judge Dickey processed about 125 foreclosure cases an hour, many of which were dismissed or continued. For a time last year, the State of Florida paid retired senior judges to hear foreclosure cases to clear dockets. Since the program's demise, dockets are clogged again, especially with the Supreme Court of Florida also dropping its mandate last month for foreclosure mediation after reports that it was ineffective. Unfortunately, according to the Office of the State Court Administrator, almost seventy percent of cases mediated from March 2010 to March 2011 did not result in any agreement between the borrower and the lender. However, a U.S. Justice Department report recently concluded that mediation can resolve more cases-- if the programs are structured effectively. Without a government driven program for banks and homeowners to mediate foreclosures, it's now up to individual judicial circuits to decide about foreclosure mediations. Some circuits, such as Volusia, have no plans to ensure that banks offer mediation. Others, such as Seminole and likely Orange, will continue mandatory mediation. See article:

Wednesday, January 11, 2012

5th DCA sanctions for failure to appear at appellate mediation

Under Florida Rule of Appellate Procedure 9.720, an appellate court may impose sanctions for failure to appear without good cause. Neither the individual appellant nor a representative of the corporate appellant attended the mediation ordered in this matter. The insurance company representative and attorney were the only ones who appeared. The 5th DCA stated the law is clear: absent being excused by the court, a party must appear at mediation and a representative of the insurance company cannot take the party’s place (citing Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)). The court further explained the fact that Carbino involved a trial mediation, rather than an appellate mediation was of no relevance because the language in the applicable rule of civil procedure is identical; Fla. R. Civ. P. 1.720(b). Thus, the appellants were ordered to pay sanctions within 30 days, including all fees charged by the mediator in connection with the appellate mediation and appellee’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation, as well as for filing the motion for sanctions. See decision

Tuesday, January 10, 2012

Has the Fat Lady Sung @ NYC Opera?

The New York City Opera locked out its union performers following a long Federal Mediation & Conciliation Service mediation. Much like the recent sports disputes, but on a much smaller scale, compensation is the sticking point. Until last year, the company was based at Lincoln Center for the Performing Arts, next door to the Metropolitan Opera. Founded in 1943, it has presented greats like Placido Domingo and Beverly Sills. But the company's budget this season is down 57 percent from two years earlier and the sides are apparently entrenched. Dealing with arts disputes can be emotional and tricky, but to see another storied company go under in this economy is sad, even if you aren't a fan. See Bloomberg story: