Wednesday, June 24, 2015

The Florida Bar ADR Section Turns 5

The ADR Section of The Florida Bar, now in its fifth year, will meet at the annual convention in Boca Raton tomorrow, to continue advancing new programs and opportunities for continued growth and participation in the section. The ADR Section was established in 2010 to provide a forum for lawyers interested in alternative dispute resolution and to provide a forum for discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. The ADR Section will keep the Bar membership 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. During The Florida Bar’s 2014 Annual Convention, the ADR section hosted a working meeting for ADR section members. Those in attendance nominated new executive council members. I was pleased to be nominated, having already founded and chaired the ADR Committee of the Orange County Bar Association in Orlando. New members elected to the ADR executive council included my Upchurch Watson White & Max Mediation Group (UWWM) colleagues, Robert A. Cole and Michelle Jernigan, who edits our section newsletter. Additionally, ADR section committees were established that plan and execute section activities, events, and programs to benefit section members. Among the busiest were: Website, Newsletter, and Legislation. The Website Committee, which I chaired, worked with the executive council and a vendor and launched the new ADR section website, The immediate goal is to make the ADR section and its benefits more accessible to all Florida Bar members, which will provide information on available CLE programs and links to MEAC opinions. In addition, each of the section’s News & Tips can be viewed from the website. The CLE committee plans to host programs with other Florida Bar sections that will not only benefit members of the ADR section, but all members of The Florida Bar. We recently presented a June UWWM webinar on issues relating to "Other ADR" in Florida with incoming ADR Section Chair, Bob Hoyle, who plans to present additional webinars on ADR through the section this year. The ADR Section will also present a seminar on mediation and arbitration today at the 2015 Florida Bar Annual Convention. For additional information on how to join the Alternative Dispute Resolution Section, visit the ADR section website--

Friday, June 19, 2015

Arbitration Questions

This week, perhaps because of the recent depiction of an arbitration on a couple of episodes of HBO's popular Sunday night show, Silicon Valley, I've been getting some queries on the process. One question was whether confidential matters could be disclosed when the arbitrator renders detailed findings of fact and conclusions of law in a reasoned award. Often we are asked not to provide reasoned awards for this purpose. Confidentiality can be preserved is through the use of confidentiality agreements or by including liquidated damages clauses within the arbitration provisions of the subject contract itself. Parties subject to such an arbitration clause agree that they would be entitled to specified damages for breach upon disclosure of information designated as confidential. Another topic that arose was whether there is a right to appeal an arbitrator’s award as one might a judgment rendered in a trial court. Under the Federal Arbitration Act (FAA), a court must confirm an arbitration award except in limited circumstances. The FAA provides few grounds for vacating an arbitration award. In fact, the U.S. Supreme Court has confirmed only a handful of exclusive means for vacating an award under the FAA. These are limited to narrowly defined procedural irregularities and are difficult to prove, except in egregious cases. A few courts have vacated awards based on review of an arbitrator’s “manifest disregard of the law,” but federal circuits remain split as to whether that constitutes valid basis for independent review. However, appellate review under the American Arbitration Association's (AAA) recent optional rules is now available. The rules provide parties with a streamlined, standardized review of arbitral awards. AAA maintains this appellate rubric remains consistent with the objective of an expedited, cost effective and just arbitration process. An appellate arbitral panel applies a standard of review more expansive than that allowed by existing federal and state law in vacating awards. This process was really developed for large, complex cases where parties heavily value the ability to appeal. Parties may use these rules with agreement by contract or stipulation. Appeals are only permitted on the grounds that the underlying award is based on errors of law that are material, prejudicial or is made on clearly erroneous determinations of fact. Generally, AAA appeals will be determined upon the written documents submitted by the parties, with no oral argument, and completed in about three months. Interestingly, the parties may apply the rules whether or not the underlying award was conducted pursuant to AAA or International Centre for Dispute Resolution (ICDR) rules. See rules here--

Friday, June 12, 2015

Medicaid Mediation

In an unusual move, a federal judge denied the Florida Governor's request to order mediation with President Obama's administration over federal hospital funds for the Low Income Pool or LIP. Rick Scott is suing the Obama administration, alleging it is withholding federal hospital funds because Florida won't expand Medicaid. He asked a judge this week to compel mediation, but the Obama administration responded that they have been engaged in ongoing and productive discussions and that mediation could delay a final decision. It is alleged that the Obama Administration violated the U.S. Constitution by threatening to withhold Low Income Pool dollars if Florida did not expand Medicaid under the new federal healthcare law. Gov. Scott, Florida Attorney General, Pam Bondi, and the Agency for Health Care Administration are the plaintiffs in the lawsuit. Secretary of the U.S. Department of Health and Human Services and the acting administrator of the Centers for Medicare and Medicaid Services, are the defendants. The Low Income Pool program is a supplemental Medicaid financing program. The federal government initially approved an extension for three years, but the Centers for Medicare and Medicaid Services then announced it would not extend the Low Income Pool beyond June 30, 2015. Florida's legislature is in special session because it was unable to pass a budget during the regular session over whether LIP dollars should be included. The Florida Senate budget is $4 billion more than the House’s, including both LIP and Medicaid expansion that the House didn’t in its own proposed budget. The federal government advised Florida that it can expect to receive $1 billion in LIP funding for the 2015-16 year and $600,000 in the 2016-17 year. Gov. Scott claims the legislature has no final approval figure and that such delay is preventing lawmakers from completing the budget. The administration has reportedly given Gov. Scott a tentative decision to extend the funds for two more years at a much lower price. Gov. Scott wants to finalize the state budget by June 30th to avoid a state government shutdown. See stories here-- and

Monday, June 1, 2015

Join me for UWWM's "Other ADR" CLE June 18th

This month, along with my Upchurch, Watson, White & Max colleagues and a special guest, we'll explore major changes being proposed by The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy in our free webinar. This webinar at noon on Thursday, June 18, is set following The Florida Bar Alternative Dispute Resolution Section and formal commenters to "Other ADR" proposals at oral argument this week the Florida Supreme Court. Incoming Chair of the ADR Section, Bob Hoyle, will share highlights of his presentation and the reception of rules by the bench at oral argument set in this matter. See more information on these rules here-- and be sure to tune in here-- As CLE presenters, we will review the perceived potential outcome based on this oral argument, as well as explain the new rubric for use of these added settlement techniques. All three presenters-- Lawrence Kolin, Bob Hoyle and Michelle Jernigan-- are members of The Florida Bar ADR Section's Executive Council and will bring special insight to the debate over proposed amendments to the Civil Procedure Rules and 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. This CLE webinar is geared toward litigation practitioners who mediate frequently, as well as mediators who may be eligible for CME. After registering at--, you will receive a confirmation email containing information about joining our upcoming GoToWebinar program. Look forward to having you join us and if not, the program will be available for replay at--, along with our other CLE programs.