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.