Orlando Mediator Lawrence Kolin explores current issues in Alternative Dispute Resolution, including mediation and arbitration of complex cases by neutrals resulting in settlement of state and federal litigation and appeals. This blog covers a wide variety of topics-- local, national, and international-- and includes the latest on technology and Online Dispute Resolution affecting sophisticated lawyers and parties to lawsuits.
Tuesday, February 17, 2015
A three-arbitrator panel in Texas found 2-1 in favor of SCA Promotions, a Dallas sports insurer that paid cyclist Lance Armstrong millions of dollars in bonuses for winning seven Tour de France titles. SCA’s dispute with Armstrong began over a decade ago, after the former U.S. Postal Service team member won the 2004 Tour de France, the sixth of his seven consecutive victories. Following doping allegations, that case went to arbitration in 2005, and SCA Promotions was forced to pay $7.5 million in 2006. Evidence from the SCA arbitration dispute was used against him, including testimony from a former teammate and his wife, who said they heard Armstrong admit to using performance-enhancing drugs back in 1996. Armstrong was later banned for life by the United States Anti-Doping Agency and stripped of his seven Tour de France titles in August 2012. Armstrong did not admit to taking banned drugs until a January 2013 televised interview with Oprah Winfrey. SCA accused Armstrong of fraud and filed suit in early 2013, and after the case was sent to arbitration, Armstrong unsuccessfully tried for an appeal with the Texas Supreme Court to have the case blocked. In a filing yesterday, SCA Promotions asked a Texas state judge to confirm the arbitration award against Armstrong. It wants the court to enter a $10 million judgment against Armstrong and former team owner that may enable it to collect payment. Armstrong’s lawyer maintains that the dispute was fully and finally settled voluntarily years earlier. However, reportedly, Armstrong offered to pay SCA the entire $10 million, despite the absence of any legal basis for the sanction, and SCA refused the offer. Armstrong is also facing a $100 million fraud lawsuit from the federal government. See stories here-- http://on.wsj.com/17L3fUG and http://on.si.com/1zkTpzc
Friday, February 13, 2015
FLADR.org is new ADR Section Website
The ADR Section of The Florida Bar has launched its new website at www.FLADR.org. The ADR Section provides a forum for lawyers practicing in alternative dispute resolution, including discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. Any member in good standing of The Florida Bar interested in the purpose of the section is eligible for membership upon application and payment of $35 in addition to the regular annual Bar dues. The ADR Section keeps Bar members informed and updated regarding legislation, rules and policies in connection with mediation and other ADR processes and the responsibilities they impose on mediator and arbitrator members, as well as provide quality continuing legal education programs. I am pleased to have chaired the initial website effort and thank our Executive Council for their effort in creating content and launching our young section’s website-- as well as, Lani Fraser, Bar Liaison. We invite every member to utilize the resources there which include MEAC opinion links, the ADR News & Notes newsletters, and CLE postings. Visitors may also provide us with suggestions on how we can improve the site and our section. Please use the Contact page to provide us with your thoughts and recommendations. We hope you find it informative and helpful. So now go and check out www.FLADR.org
Wednesday, February 11, 2015
Guess Who’s Coming To Mediation - Next Thursday 2/19 at Noon!
Register for our free Upchurch Watson White & Max CLE 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 Florida 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 and business court. 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 http://www.uww-adr.com/webinar/guess-whos-coming-to-mediation and link to your registration here--https://attendee.gotowebinar.com/register/628144760073036802 so sign-up now!
Monday, February 2, 2015
ADR Rules & Policy Responds to Comments on ADR Process Rules for which No Other Standards Exist
The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. Comments were filed at the end of last year to which Committee Chair, Hon. William D. Palmer, Fifth District Court of Appeal has responded, stating the new rules and standards provide basic rules intended to provide some level of guidance to practitioners and protection to consumers for ADR processes for which no guidance or protections currently exist. Current ADR processes which have promulgated rules and standards would not be subject to these rules. According to the committee's response, some of the "Other ADR Processes" are currently authorized in statute (such as Voluntary Trial Resolution) and others are being utilized by courts and parties with no particular statement of authority (such as Early Neutral Evaluation). The ADR Rules and Policy Committee seeks to encourage expanded and innovative use of ADR processes without fear of placing parties in jeopardy. The committee feels there is no way of knowing what Other ADR Process will be selected or created by parties or the court, and so there is no way to suggest specific qualifications, certifications, definitions or an appropriate disciplinary process. Due to the unknown nature of which process may be selected, the committee feels it must be up to the court ordering the process to establish some guidance for the process. With regard to confidentiality, the committee states there are many ADR processes for which confidentiality is neither appropriate nor expected. The committee did agree to modify defining a neutral as follows: an impartial third party who is not predisposed to the resolution or outcome of the process who participates at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute. The committee concludes that the adoption of new rules may lead to experience necessary for novel ADR processes to gain popularity, after which time the courts and/or legislature may have confidence to adopt more specific rules for those utilized successfully over a period of time. It is unclear whether the Supreme Court of Florida will hold oral argument on this proposal. See more in filings for Case No. SC14-1852 at http://www.floridasupremecourt.org
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