Friday, January 30, 2015

Register for Guess Who’s Coming To Mediation

Join us next month for our next Upchurch Watson White & Max Webinar: "Guess Who’s Coming To Mediation?" February 19. 2015 at noon. UWWM has applied for 1.0 hour General Credit (50 min) CLE from The Florida Bar. Program Speakers include distinguished UWWM mediators: Michelle Jernigan, Lawrence Kolin, and Dominic Brandy. At this unique online seminar, designed to increase or maintain the attorney’s professional competence and skills as a lawyer, you will be exposed to wide ranging rules under the topic of attendance and authority at mediation. Effective speakers in the areas of mediation certificates of authority and local rules, and use of technology for attendance will engage the audience and inspire conversation and questions on the related topics. The seminar is geared toward litigation practitioners whose clients utilize recognized processes in Florida’s courts to resolve cases, as well as mediators and arbitrators who may be eligible for CME. Michelle Jernigan will serve as our Moderator and review recent state rule changes for certifying attendance under Rule 1.720, FRCP. This rule redefines party attendance/authority and significantly, requires that the parties file a “certification of authority,” 10 days prior to appearing at a mediation conference, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by the amended rule. Lawrence Kolin will continue the discussion of appellate attendance rule, Rule 9.720, FRAP and local rules for court annexed mediation in the U.S. District Courts for the MDFL and NDFL. The new language in Florida Rule of Appellate Procedure 9.720 was originally suggested by Kolin and designed to mirror what has been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. Local court rules for the Middle and Northern Districts of Florida will also be covered. Finally, Dominic Brandy will outline of new rule in U.S. District Court for SDFL and requirement for court approval, if variations are required. Unless excused in writing by the presiding Judge, all parties and required claims professionals (e.g., insurance adjusters) shall be physically present at the SDFL mediation conference (i.e., in person if the party is a natural person or by personal attendance of a corporate representative if the party is an entity) with full authority to negotiate a settlement. The mediator shall report non-attendance to the Court. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court. A Question & Answer session will follow the webinar presentation. Information on panelists at and link to your seat here-- so register now!

Tuesday, January 27, 2015

Dodd-Frank Arbitration

Recently, a federal appeals court ruled that a prohibition on mandatory arbitration does not apply to new causes of action that the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 created to protect whistle-blowers. Congress banned mandatory arbitration in corporate and financial whistle-blower litigation by enacting the Dodd-Frank. With that, employees could no longer be compelled to arbitrate their retaliation claims under the Sarbanes-Oxley Act, the Commodity Exchange Act or the new Consumer Financial Protection Act. Though there is some overlap between Sarbanes-Oxley and newer Dodd-Frank claims, an employee may have no judicial remedy if they are subject to mandatory arbitration and also fail to exhaust the administrative remedies necessary to bring a Sarbanes-Oxley claim. The U.S. Court of Appeals for the Third Circuit, in Khazin v. TD Ameritrade Holding Corp., ruled last month that TD Ameritrade could compel arbitration of a former employee’s Dodd-Frank whistle-blower claim, because he had a written employment contract that required him to arbitrate all employment-related disputes and that was enforceable under the act. The district court had ruled he must arbitrate his claims, but for different reasons. The lower court reasoned that the employment contract predated the passage of Dodd-Frank, but the Third Circuit found on appeal that the Dodd-Frank legislation’s anti-arbitration section expressly amended Sarbanes-Oxley, but did not contain any reference to Dodd-Frank’s own anti-retaliation cause of action. Distinctions between Sarbanes-Oxley and Dodd-Frank could generate further splits of authority in the federal courts if this approach is rejected. See full story here-- and a copy of the opinion here--

Wednesday, January 21, 2015

China to get in on ADR

This week, the Supreme People's Court of China said local courts nationwide should find innovative alternatives to litigation in resolving disputes. An official statement urged 50 local courts to better meet people's legal requirements and take a judicial role. Reportedly, the move is in line with the Communist Party of China Central Committee's decision on comprehensively advancing the rule of law, which was released last fall, in order to "perfect pluralized dispute resolution mechanisms that organically link and mutually coordinate mediation, arbitration, administrative rulings, administrative redress, litigation, etc." The 50 courts were directed to innovate in dispute resolution work and lead the way in the reform. The Supreme People's Court is the highest judicial organ in China and is responsible for independently exercising the highest judicial right according to the law and without any interruption by administrative organs, social organizations or individuals. Interestingly, the high court in China is charged with three wide-ranging responsibilities: 1) trying cases that have the greatest influence in China, hearing appeals against the legal decisions of higher courts, and trying cases The Supreme People's Court claims within its original jurisdiction; 2) supervising the work of local courts and special courts at every level, overruling wrong judgements they might have made, and reviewing cases tried by the lower courts; and 3) giving judicial explanations of the specific utilization of laws in the judicial process that must be carried out nationwide. See story here-- and the English version of The Supreme People's Court's website:

Tuesday, January 13, 2015

Happy New Year from Orlando Mediator!

It has been almost five years since this blog was created by Orlando Mediator, Lawrence H. Kolin, to explore issues and trends in dispute resolution. In that time, this weblog has become an officially-listed "Blawg" of the American Bar Association's ABA Journal. My full-time alternative dispute resolution (ADR) practice has continually evolved since first becoming certified in 2001 in Circuit-Civil and County mediation by the Florida Supreme Court. I have recently joined the prestigious national ADR firm, Upchurch Watson White & Max, known for facilitating reasonable agreements to resolve difficult issues. I continue to handle resolutions of complex cases in state and federal trial courts, as well as appellate mediation. Though litigation costs remain high, filings have slowly risen as the economy finally recovers, with early settlements still popular in business cases. Pre-suit mediation can be effective if the parties have enough information to evaluate their positions in the potential litigation. Another development has been the advent of electronic discovery in state courts and the struggle by judges and lawyers to get a handle on the necessity and expense of producing and exchanging data in proportion to the amount in controversy. Routine early mediation of these e-discovery issues by an experienced E-Neutral can actually help narrow the scope of electronically stored information (ESI) and return the focus of the parties to the merits of the case. I look forward to another great year of highlighting the current news and latest directions ADR is taking in the 21st Century. Thanks for joining me along the way!