Online Dispute Resolution Update

As we head into 2017, I wonder about technology influencing the future of mediation as the prevalence of artificial intelligence in the law grows in areas like Electronic Discovery. Online Dispute Resolution (ODR) has been the subject of much debate and is more popular overseas than in America, though many online merchants have been using systems such as Modria for years on low dollar disputes to resolve customer issues. My colleagues and I have even debated the efficacy of such an impersonal form of Alternative Dispute Resolution in the Executive Council of The Florida Bar's ADR Section. Now, University of Maryland Law Professor Robert Condlin has authored an article entitled,“Online Dispute Resolution: Stinky, Repugnant, or Drab." In it, he provides an overview of currently existing processes and identifies potential consequences related to their use, suggesting refinements. For instance, most ODR programs require parties to describe their claims in fixed, predefined categories that may not capture all claims dimensions or limit the opportunity to argue substantive merits underlying their worth. He raises limits to the ability to resolve differences on the basis of private software algorithms that raise fairness issues not present in dispute resolution systems run principally by humans. Professor Condlin opines there are certain legal, political, and moral concerns yet to be addressed that ODR proponents must answer if online systems are to satisfy the demands of state-sanctioned, public dispute resolution. See more of the abstract here cited as U. of Maryland Legal Studies Research Paper No. 2016-40-- http://bit.ly/2iEp5Cf and materials from ADRHub's CyberWeek 2016 on the latest in predictive analytics for negotiation-- http://bit.ly/2i7uOj9

Gawker Settlement Approved in BR

This week, Gawker Media won court approval to repay creditors and settle the $140 million legal judgment awarded to former wrestler Hulk Hogan that drove the online publisher into Chapter 11 Bankruptcy. U.S. Bankruptcy Judge Stuart Bernstein of New York signed off on Gawker’s reorg plan. The settlement pays Hogan $31 million to resolve privacy litigation over Gawker’s publication of a highly publicized sex video. Approval of the plan ends a four-year legal fight between Gawker and Hogan in a case tried before a Florida jury earlier this year. Liability for the resulting verdict in Hogan's favor and Gawker’s failure to stay the judgment for purposes of appeal forced the bankruptcy. Reportedly, lawyers involved in the settlement say this brings the case to a close and extinguishes any possibility of appeal. Gawker sold most of its blogs, excluding its namesake site, to Univision for $135 million. Gawker’s Chapter 11 plan splits the company’s assets and sale proceeds among its creditors. The plan also includes settlements of other defamation lawsuits. Gawker maintained its stories subject to lawsuits were true, arguing First Amendment protection, but the expense of continuing to defend litigation would have been too much. Judge Bernstein said each of the settlements was reasonable for Gawker in light of the circumstances. The deal also shields former writers and editors from future lawsuits. In exchange for receiving that protection, the writers agreed to relinquish their rights to indemnification. The Wall Street Journal writes that the releases raised a novel issue on the intersection of bankruptcy law and the First Amendment and elicited a legal brief from a collection of journalism organizations in support of the legal protections. See more here-- http://on.wsj.com/2hjh0Bt

Wells Fargo Arb Clauses Fair Game in Fraud Cases?

The well-publicized Wells Fargo fraudulent account creation cases are being defended with lawyers arguing for application of arbitration clauses signed when customers opened their legitimate accounts. Plaintiffs argue the cases should be in court rather than arbitrated. Now Congress may weigh in with legistlation to carve out the cases. Lawmakers want consumers to be able to sue the bank in court over the fake account scandal rather than go through private arbitration. A bill introduced by Senate Banking Committee Ranking Minority Member Sherrod Brown and Congressman Brad Sherman called the Justice for Victims of Fraud Act of 2016 goes against the mandatory arbitration clauses that prevent customers from suing Wells Fargo. The case is pending in the U.S. District Court in Utah which has been asked in a motion to dismiss to order customers suing the bank to resolve their issues via arbitration. Wells Fargo is reportedly providing mediation services to affected customers for free. According to the bank, if a resolution is not reached, the arbitration clause allows for a forum in which customer disputes are heard and resolved quickly and efficiently with a neutral, third-party. This is the first class action lawsuit filed against Wells since it agreed to pay a $185 million penalty and return $5 million to customers for opening up to two million deposit and credit-card accounts in their names without their permission. The penalty by the Consumer Financial Protection Bureau (CFPB) is the largest fine levied from the government agency over account opening practices. According to an investigation by the CFPB, Wells Fargo employees not only made fake deposit accounts, but also submitted 565,443 unauthorized credit card account applications on behalf of unknowing customers. It’s estimated that 14,000 of those accounts accrued $403,145 in fees. Through its own independent investigation, the bank discovered a total of $2.6 million in unauthorized fees. Obviously, a new Congress and President next month could stymie this effort. See more here-- http://bit.ly/2hspkMj

Anniversary of E-Discovery Amendments

Today marks one year since significant changes were made in 2015 to the original 2006 federal rules on electronic discovery. Federal Rule of Civil Procedure 26(b)1 now emphasizes proportionality and seems to have influenced determining the expense or burden of proposed discovery in a more realistic way. The advent of technology assisted review has also brought costs down and is being employed more frequently by parties and is accepted and even encouraged by courts. My role remains as E-neutral, mediator or sometimes court-appointed special master to facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature private caucuses with retained experts or information technology liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding sanctions and unpredictable judicial outcomes. Cooperation using alternative dispute resolution may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawbacks or agreed confidentiality orders. Rule 37(e) improved the safe harbor for mistakes in deletion, recognizing the volume of data generated is ever increasing and has made preservation more challenging. Sophistication of the parties is still taken into account in reasonable steps taken to initiate holds, but a lawyer's duty of competence in technology in more important than ever. Our E-Discovery & E-Neutral Services can help in that area, providing assistance by hosting Meet and Confer sessions, facilitating cost effective, mutually cooperative, and relevant ESI programs-- even in state court, with Mediated Case Management or Pretrial Stipulations under Florida Civil Rules 1.200 or 1.201. As Special Magsitrates, we are available to monitor E-discovery compliance or perform complex in-camera reviews for which judges don't have time. See more here-- http://www.uww-adr.com/services/e-discovery-and-e-neutral-services/index

An opportunity for mediation

Republishing this mediator's column from Vail Daily as I think it best sums up what I have felt since the election a couple of weeks ago:

As we adjust to the new paradigm resulting from the election, we are still struggling to balance the poles whose swing ushered in such change. We are subsumed by violent protests, physical and verbal attacks — the immature reactions of those who reside in the extremes. Negativity is the dominant theme as it hovers menacingly over our words and actions. Immersed in the present, worried about the future, we forget that our past is full of much greater hardships that were not only endured, but conquered. Any shift, seismic or minuscule, affords opportunities to evolve and prosper in the newly-created landscape. Typically, this is viewed pejoratively, as when financiers reap huge profits during recessions. But, exploitation need not be construed as negative. The forces of cooperation and compromise must be predatory, need to swoop in as a falcon would to take advantage of the opportunity to bridge our current gulf. Now is the opportune time for mediation to rise. We have proven that we are adept at fraction. Entire industries are devoted to furthering the divides that reside within our population; legal and media chief among them. We have mechanized the process of conflict, have given hate more than enough venues. Consequently and inevitably, our society has become so intensely stratified and segmented that it is nigh impossible to spot a cohesive whole. We are not united, we are untied. To again coalesce, we need guidance from those who have been trained to bring about cohesion. Mediators have devoted their lives to that cause and no time seems more apt for their ascendancy. Mediators are used to dealing with pessimism. Almost every mediation starts with declarations from the adverse parties that there is no way that the problem will be solved. As a litigator salivates over the thought of vanquishing the opposition, the mediator relishes the chance to bring two people together who are doing their utmost to stay apart. He does not shy away from a difficult situation, knowing that hardened hearts can soften with the right dialogue and the appropriate empathy. Mediators are used to dealing with fear. Because of the voluntary, non-binding nature of the mediation process, the fear of failure is absent, or at least should be. This fearlessness imbues the mediator with the ability to be more bold, more creative, more inspirational with his approach. The more seemingly intractable the problem, such as in our current national crisis, the more that the mediator can and must risk in order to close the gap. With the stakes at their highest, the potential for life-altering outcomes is within the mediator’s grasp. Mediators are used to dealing with pettiness. The mediator’s ears have heard levels of name-calling that would shame a second-grader. The mediator witnesses the most inconsequential details forming the basis for the most intense disagreements. He has seen people stand on principles so flimsy that they should be doused in marinara. He has been unable to prevent a person from walking away from an excellent compromise because of nothing but pure, unadulterated spite. The lack of grace is dispiriting, but it does not dissuade the mediator from his chosen endeavor. Mediators are used to dealing with rage. To remain placidly in the middle while each side stokes its emotional wildfire is the ideal to which every mediator is devoted. The fisticuffs are not always figurative. There are times when bodily harm is attempted, if hopefully not achieved. Mediators should carry umbrellas to shield themselves from the spittle that flies from those whose bellicosity leaves their minds and jaws unhinged. But, even in the face of this venom, a volatile environment is the mediator’s preferred habitat. Mediators are used to dealing with errors. The mediator does not operate in a world where the prevailing fiction is that perfection is possible. He is comfortable with flaws, his own and those of the people that surround him. The mediator intuitively understands that facts are relative to one’s perspective, that there are no absolute truths. It is the recognition of mutual culpability and vulnerability that allows the mediator to construct positive solutions. The mediator’s experience prepares him perfectly for this new, fractured epoch. It is not the litigators who will kill their golden goose of conflict. It is not the bankers who will preach abnegation. It is not the doctors who will stitch our psychic wounds, their hands being restrained by the overlords of insurance. No, it is the mediators who must assume the mantle of leadership to deliver us from a misaligned destiny.

-T.J. Voboril http://www.vaildaily.com/opinion/vail-daily-column-an-opportunity-for-mediation/

ADR Part of Long-Range Plan for FL Courts

A long-range strategic plan for Florida's Judicial Branch from 2016 to 2021 is available, published by the Judicial Management Council. It finds that Florida’s people depend on their court system to make fair, reliable, and prompt case decisions. The administration of justice requires deliberate attention to each case, a well-defined process to minimize delay, and the appropriate use of limited resources. It emphasizes the importance of our judicial branch in implementing practices which utilize resources effectively, efficiently, and in an accountable manner while continuing its commitment to fairness and impartiality. It specifically aims to promote the use of innovative and effective problem-solving courts and alternative dispute resolution (ADR) processes, such as mediation and arbitration. The report finds Florida’s courts are committed to equal access to justice for all. However, litigation costs, communication barriers, lack of information, complexity, biases, and physical obstructions can create difficulties for those seeking to access the courts to obtain relief. Therefore, it concludes the judicial branch must strive to identify and remove real or perceived barriers to better provide meaningful access to the courts. The judicial branch’s legal authority is a grant by the people, and public trust and confidence in the judicial branch is at the heart of maintaining a democratic society. Promoting public trust and confidence in the courts, it says, enhances the effectiveness of court actions, strengthens judicial impartiality, and improves the ability of courts to fulfill their mission. Finally, it resolves that improved communication, collaboration, and education efforts will better inform the public about the judicial branch’s role, mission, and vision. See more in report here-- http://bit.ly/2fE4ITI

Injunction Blocks New CMS Arb Ban

The implementation of a new rule prohibiting federal funds for nursing homes that enter binding arbitration agreements with residents has been blocked by U.S. District Court Judge Michael P. Mills of the Northern District of Mississippi, who found in granting a preliminary injunction that the Centers for Medicare & Medicaid Services (CMS) did not have authority to enact the mandate without statutory authority. In an order sympathetic to residents and their families, he opined the rule by CMS, an agency under Health and Human Services (HHS), did appear to be based on “sound public policy.” However, the court was unwilling to play a role in countenancing the incremental “creep” of federal agency authority beyond that envisioned by the U.S. Constitution. CMS essentially barred any nursing home or assisted living facility that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades. The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close. The order states, “This court believes that Congress might reasonably consider this inefficiency, as well as the extreme stress many nursing home residents and their families are under during the admissions process, as sufficient reason to decide that arbitration and the nursing home admissions process do not belong together.” See order here-- http://bit.ly/2gd06oL or http://bit.ly/2fOYdvi

I Need Your Vote!

Here's an easy warm-up for our national election process. Please choose my Orlando Mediator blog for 'The 2016 Best Legal Blog Contest' put on by The Expert Institute. This blog just celebrated its sixth anniversary. It has already become an officially listed 'Blawg' of the American Bar Association's ABA Journal. The Expert Institute was founded with the objective of developing a smarter way for attorneys to identify, verify, and retain the best experts. They have now nominated and selected this blog as a finalist in the Legal News category, narrowed from a field to more than 500 of the most exciting, entertaining, and informative legal blogs online today. According to the contest organizer, every one of these blogs has earned its spot as a leader in its category. It's time for readers to select the best of the best-- creating the most definitive list of the Internet's top legal blogs and a permanent spot on their Best Legal Blogs page. Readers can submit one vote per IP address. The polls close November 14th so, just to be safe, please vote now and get your friends and associates to do so as well! Thanks for your loyal readership and support. Copy this link, verify you are human, and click thumbs up box to vote-- www.theexpertinstitute.com/legal-blog/orlando-mediator

UPDATE: The votes are tallied and Orlando Mediator took third in the Legal News category and will be permanently listed on the Best Legal Blogs once updated here-- https://www.theexpertinstitute.com/best-legal-blogs/

Water Wars Start On Halloween

Attorneys for the states of Florida and Georgia are to begin arguments on Halloween in the decades-long Water Wars between them. A Special Master whose ruling could influence an eventual U.S. Supreme Court decision to turn down Georgia’s water spigot will begin a trial tomorrow in his home state of Maine. Florida seeks to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin including Lake Lanier to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. The dispute focuses on the river basin which drains almost 20,000 square miles in western Georgia, eastern Alabama and the Florida Panhandle. The Chattahoochee and Flint rivers meet at the Georgia-Florida border to form the Apalachicola, which flows into the bay and the Gulf of Mexico beyond. Ralph I. Lancaster, Jr., the octogenarian Supreme Court appointee, previously advised the states to settle out of court rather than live with a costly decision he stressed neither will like. The states initially tried to mediate the case and chose a mediator whose name was strangely kept secret by Master Lancaster’s order. Status reports filed by the attorneys had indicated meetings between the mystery mediator and high level state officials were continuing before trial, but the parties seem to have reached an impasse. The parties reportedly participated in multiple mediation caucuses to no avail. Except to hear progress reports, Master Lancaster wanted no part of the mediation process, but now will have to try the case himself. In its brief, Florida still seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. Experts will argue the remedy is reasonable water use reduction mechanisms that would mitigate otherwise substantial future harm. After both sides present their evidence and arguments, Master Lancaster will his recommended ruling to the U.S. Supreme Court. The Justices then review his findings and any rebuttals by the states before issuing a final decision likely sometime next year. See news item here-- http://bit.ly/2eYcJ5J and docket here-- http://bit.ly/2aMQVJH

America's Cup Arbitration

This month, America's Cup officials released the 2017 regatta schedule for Bermuda while continuing to remain silent about an arbitration panel decision that reportedly went against organizers and could cost them several million dollars. Team New Zealand is in line to receive a seven figure pay-out after winning a bitter dispute over a breach of contract with the America's Cup Events Authority (ACEA) that reportedly reneged on an agreement awarding Auckland hosting rights of the America's Cup qualifier. After delays of more than a year, an arbitration panel finally assembled last summer to hear the case. It is believed the panel, the make-up of which is still unknown, ruled in Team New Zealand's favor. With blanket confidentiality clauses in place around arbitration, the decision was not publicly released. Since the dispute was lodged, teams have been working on a new timetable which prevents them from launching their boats until the end of this year, making it impossible to reinstate the regatta in Auckland. The competitors voted that all and any detail surrounding any arbitration remain confidential. The decision prohibits teams and individuals from discussing or even confirming the existence of a dispute before the arbitration panel. Doing so could draw sanctions including censure and a fine of up to $1 million. In past America's Cups, quasi-judicial proceedings were conducted with a high degree of transparency as to issues, when they were being heard, and the outcome. Unlike today, previous America's Cup Arbitration Panels even adopted the practice of going a step further and allowed a couple of members of the media to observe the proceedings and report back to a general pool. The defender, Oracle Team USA, will compete in the America's Cup match next summer. The qualifiers will eliminate one of the five challengers. The remaining four will then go into a playoff to determine which team will face two-time defending champion USA. See more here-- http://bit.ly/2fhjikF and http://es.pn/2ecE3tr and http://bit.ly/2fhku7I

Pushback By Nursing Homes On CMS Arbitration Ban

This week, the nursing home industry, consisting of the American Health Care Association (AHCA) and others, filed suit against the Centers for Medicare & Medicaid Services (CMS) within the Department of Health and Human Services (HHS), alleging CMS exceeded its authority and claiming the agency has no authority to regulate the use of arbitration. CMS recently promulgated a rule that prohibits Medicare participating skilled nursing facilities (SNF) from entering into arbitration agreements with residents at their facilities upon admission, no matter how fair or beneficial those agreements may be to residents. The complaint states that the new arbitration ban violates the Federal Arbitration Act (FAA) and exceeds the statutory authority of CMS and HHS under the Medicare and Medicaid Acts, neither of which vests the agencies with the power to regulate alternative dispute resolution procedures. The complaint argues, even if the rule is allowed by law, it is arbitrary and capricious because it would deprive nursing homes and their residents of the benefits of arbitration and result in the siphoning of resources toward litigation costs and away from resident care. The new rule does not prevent residents of a SNF from choosing to enter into arbitration-- it just means the SNF can no longer force the dispute out of the courtroom. However, the complaint contends that parties almost never agree to arbitration in a particular case after a dispute has arisen. See complaint here-- American Health Care Association, et al. v. Sylvia Burwell and Andrew Slavitt Case No. 3:16-cv-00233 http://bit.ly/2dMdKu9 and press release-- http://bit.ly/2ed140y

Mediation Week Professionalism Webinar 10/17

Since I began mediating in 2001, the field of alternative dispute resolution (ADR) has experienced tremendous growth. The recognition that not all cases are well-suited for an adversarial process and that multiple paths exist to achieve justice is increasingly shared by attorneys, judges, and the public. A decade into my ADR practice, in 2011, the American Bar Association (ABA) began recognizing the third week of October as “Mediation Week,” building on the efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR). For this year's ABA Mediation Week, Upchurch Watson White & Max will present its complimentary monthly UWWM Webinar focusing on how to make language and civility work in negotiation. My esteemed colleague, Howard Marsee, with whom I first worked back in 1994, will discuss "The Language of Professionalism in Negotiation " at noon Monday, October 17, 2016. The 75-minute program presented in conjunction with the University of Florida Levin College of Law Institute for Dispute Resolution has a dual purpose to share some of the communication skills that mediators observe in really good negotiators and to explore how language can contribute to professionalism in the context of negotiations. I will help to guide the discussion as moderator. The content of this Florida Bar approved continuing legal education (CLE) is designed for trial lawyers who represent clients in mediation and for professional mediators. See more information and registration link here-- http://conta.cc/2cZWJP3

Beware Mediation Certificates of Authority

This month, the Second District Court of Appeal reversed a circuit court judge who agreed with exceptions taken to a magistrate's report and recommendation and entered a final order following a failure to show cause, thereby dismissing a residential foreclosure case with prejudice due to a bank's alleged failure to attend mediation. The court also entered a final judgment against the bank for attorney’s fees and costs pursuant to Section 57.105, Florida Statutes. This sanction was given because the bank had technically failed to attend court-ordered mediation because in not timely filing a certification of settlement authority required by Florida Civil Procedure Rule 1.720. Rule 1.720 authorizes a court to award sanctions that include attorney’s fees and costs and mediator expenses resulting from a party’s failure to appear. Violations of Rule 1.720 have typically been addressed only with monetary sanctions. As a mediator, we are not often copied on Certificates of Authority and are not involved in policing this filing, which is the court's domain. A party representative having full authority to settle under the rule means the final decision-maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing about the rule requires any party or party representative who appears at a mediation conference in compliance with the rule to enter into a settlement agreement. The rule also requires that 10 days prior to the mediation, participants must file a certification of who will be attending the mediation on behalf of the party and who has the authority to settle the case. In the H&R Block Bank v. Perry matter, the complaint was filed on behalf of H&R Block by Nationstar Mortgage, LLC, a mortgage servicer, acting as H&R Block’s attorney-in-fact. At the outset of the case, H&R Block had filed a required form which stated that a representative of Nationstar would attend any mediation on behalf of H&R Block with authority to settle the case. The trial court subsequently entered an order referring the case to mediation. Three days before mediation, H&R Block filed a certification of settlement authority under rule 1.720. H&R Block’s certification was filed seven days later than Rule 1.720 requires. Because the trial court failed to make findings supported by the record that the conduct involved was willful, persistent, or otherwise aggravated and that no lesser sanction would be just under the circumstances, the decision was reversed. See opinion here-- http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2009,%202016/2D15-1351.pdf

Long-term Care Arbitration Attacked

This month, a decision by the Supreme Court of Florida and a rule by the federal agency that controls Medicaid and Medicare funding have dealt serious blows to the use of arbitration by long-term care facilities. The Centers for Medicare and Medicaid Services, an agency under Health and Human Services (HHS), essentially bars any nursing home or assisted living facility that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades. The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close. This was the case over a decade ago, when many excess verdicts were recorded in Florida, forcing players out of the state or out of business altogether. Lawyers who work with the elderly say that people are being admitted to nursing homes at one of the most stressful moments of their lives. Distraught and often desperate for a room, prospective residents do not fully grasp what they are signing. Many times, family members are involved in the admission process. The the Supreme Court of Florida said in a Miami case that a father who was a resident in a nursing home could not be bound by an arbitration requirement that his son had signed without the father’s agreement. However, reportedly, one appeals court refused to throw out an arbitration clause signed by a man who could not read or sign his name, reasoning that “illiteracy alone is not a sufficient basis for the invalidation of an arbitration agreement.” See FL decision in Mendez v. Hampton Court Nursing Center, LLC here-- http://www.floridasupremecourt.org/decisions/2016/sc14-1349.pdf Read more here: http://hrld.us/2dCnHLo and http://nyti.ms/2dCmeVh

Bruce Willis's Yippee Ki-Yay Arbitration Award

Last week, Bruce Willis asked a Superior Court judge to affirm an arbitrator's award and enter it as a formal judgment against Benaroya Pictures in the amount of $5.8 million. An arbitrator found the head of a movie production company thoroughly non-credible after his misrepresentation about a film that died a week into shooting. The award found that the company and its alter ego breached a contract to pay Willis $8 million to star in an action thriller called Wake. Willis was to play a sociopath with a violent history attempting to reconnect with his estranged family at his brother's wake. Reportedly, Willis typically earns $6 million to $8 million to lead a feature film and as much as $3 million for a one or two-day cameo role. The defendant was a producer in more than 20 films, including a 2011 crime thriller called Catch .44 that starred Willis. In the deal for Wake, an escrow agreement was created under which the film company was to place payment in an escrow account before principal photography began. The account holder was to pay Willis a portion of the fee each week over the planned seven-week shooting schedule. The producer failed to find full financing for the $25 million project and managed to put only $3 million into escrow by the time production was abandoned. By that point, Willis already spent two days in front of the camera. Willis took the dispute to arbitration, claiming breach of the escrow agreement. The arbitrator found the producer negligently misrepresented the film was fully funded, but denied remaining tort claims and counterclaims. The producer asked the Superior Court to vacate the award because the arbitrator had gone too far in adding him personally as a defendant, despite being a non-signatory. See more in stories here-- http://bit.ly/2cM7i7y and http://bit.ly/2cInisa and http://bit.ly/2bHVJNW

Uber Arbitration Agreements Upheld

Last week, the Ninth Circuit Court of Appeals in the case of Mohamed v. Uber Technologies, Inc. overturned a District Court’s ruling which originally found Uber’s arbitration agreements to be unenforceable. Last year, the District Court held Uber's arbitration agreements were unconscionable due to the inclusion of a waiver of claims brought under California’s Private Attorneys General Act (“PAGA”). The decision invalidated nearly 250,000 arbitration agreements between Uber and independent drivers, allowing the case against Uber to proceed as a class action in civil court. Uber appealed the decision, arguing that the District Court should have simply severed the PAGA waiver pursuant to a severability provision, rather than invalidating the entire agreement. The Court of Appeals agreed with Uber, ruling that the PAGA waivers be severed from the arbitration agreements and the agreements are otherwise enforceable. The Ninth Circuit dismissed the trial judge's reasons for declaring parts of the arbitration agreement unenforceable as artificial. The appeals panel found the lower court judge also ignored Ninth Circuit precedent, erroneously applying a California Supreme Court decision that itself cited a relevant Ninth Circuit decision. This lastest decision will allow Uber drivers to pursue their PAGA claims in court, but will allow Uber to compel individual arbitration on all other claims. Uber had agreed to a $100 million settlement, which the trial court rejected last month, calling it unfair and inadequate. See more on here-- http://bit.ly/2cB6ylD and full decision-- http://bit.ly/2cnJaco

Yosemite Names Settlement Stalls

An effort to settle a federal dispute between Yosemite National Park and its former concessions company, Delaware North, over trademarks has stalled before a costly and likely time-consuming court battle set next year. Despite mediation efforts between U.S. Justice Department attorneys and a government vendor, the sides reportedly resumed trial preparation. “'The parties do not believe that settlement is likely at this time,'” attorneys reported to the court, while adding that while they “'remain open to the possibility of mediation in this case...'" Myriad disagreements still separate the National Park Service from the concessions company. A new park concessions company takes over the lucrative contract this month. The departing company, a subsidiary of Delaware North, trademarked names of famous destinations like the Ahwahnee hotel (now known as Majestic Yosemite Hotel) and Curry Village cabins (now called Half Dome Village), during its tenure and now contends it must be paid for the intellectual property rights. Substantive differences over the lawsuit include the validity, dollar value and future of the new trademarks. The company’s sealed appraisal pegs the value of the trademarks at $44 million, while the government values the names at only $1.6 million. Of course, the U.S. Justice Department maintains a private company in attempting to monetize a property right it never possessed. Unless the judge summarily resolves the case, the core Yosemite trademark dispute won’t be decided until a U.S. Court of Federal Claims trial occurs in mid-to-late 2017, at the earliest. The parties previously advised Chief Judge Patricia E. Campbell-Smith that they were working on a framework for finding a settlement and apparently made substantial progress toward an agreement on a mediation plan, but did not explain exactly what caused them to step back from mediation. The government wants to allow the current Yosemite concessionaire, a subsidiary Aramark, to join the lawsuit as a third party. Delaware North opposes this move. Ultimately, the Justice Department argues, it could be the Aramark firm that’s liable for paying for any trademarks. See more here-- http://hrld.us/2bCOBnC and the court's order sealing the valuation report for trade secret reasons here-- https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2015cv1034-34-0

Join me for 8/31 CLE Mediation Webinar!

Please join me later this month for our UWWM webinar series, presented in conjunction with the University of Florida Levin College of Law's Institute for Dispute Resolution, entitled "Why it is Almost Always Better to Mediate." I'll be joined by my colleague and moderator, Michelle Jernigan, as we explore the advantages of avoiding litigation through the use of mediation in this hour-long Webinar set for noon August 31, 2016. We'll endeavor to explain how non-judicial solutions can be achieved faster, at lower cost. Of course, confidentiality is a key component of the process, and one which can be misconstrued as uniquely part of lawyer-to-lawyer communications on settlement, which are merely excluded from evidence. We will also consider how a third party in a negotiation gains the advantage of insight into positions and information that might otherwise not be available to the lawyers talking alone. As mediators, we are also able to test assumptions about the value of a case and be frank in a way that may not be possible for another lawyer. The content of this Webinar is designed for Florida trial attorneys, paralegals and legal assistants. Our Florida mediation firm, Upchurch Watson White & Max, is happy to provide legal professional colleagues with free continuing legal education opportunities on a variety of ADR issues. Our accredited Mediation Webinars are presented live monthly and you may view them later via links on our website, if unable to attend via GoToWebinar at the time of broadcast. As always, attending our complimentary Mediation Webinar will entitle you to 1.0 hour continuing legal education (CLE) credit already approved through The Florida Bar. Mediators tuning in might also claim continuing mediation education (CME) credit for certified mediators by printing the registration for your records and reporting accordingly with the Dispute Resolution Center (DRC) upon renewal. Register here-- https://attendee.gotowebinar.com/register/5191450080155769092 and read more information here-- http://www.uww-adr.com/Why-It-s-Almost-Always-Better-to-Mediate-7-1.html

Trump Confidentiality Arbitration

Can you have it both ways? A former Donald Trump campaign staffer is asking a court keep a dispute from proceeding in arbitration. The Trump Campaign is accusing Samuel Nunberg of breaching a confidentiality agreement by allegedly leaking information to Politico about a confrontation between top staffers. Nunberg also is charged with disparaging staffers in an article published by GQ magazine. Trump is seeking at least $10 million in a claim first made at the American Arbitration Association. Nunberg asserts that the Trump Campaign is attempting to chill his free speech rights, so he is looking to a New York Supreme Court judge to stop the arbitration. The campaign accused Nunberg of attempting not only to propel himself back into the spotlight, but to use the court as a vehicle to disclose confidential information violating the agreement. Nunberg states while it may be the philosophy of the Trump Campaign that all publicity is good publicity, his arguments over arbitration are not a stunt. Reportedly, each side is fighting over which of two agreements is operative-- a consulting agreement with the presidential exploratory committee or an earlier agreement with another Trump entity. It appears that the latter contains an arbitration clause while the former mandates disputes in New York court. At issue, is screaming between former Trump campaign manager Corey Lewandowski and campaign spokesperson Hope Hicks also reported in the NY Post's Page Six. Nunberg's lawyer maintains embarrassing shouting on a public street can hardly qualify as confidential and that a citizen of a free country should be protected against prior restraints of speech. Maybe not. See full story here-- http://bit.ly/2b0v3Yj

Secret Water Wars Mediator

A Special Master whose ruling could influence an eventual U.S. Supreme Court decision to turn down Georgia’s water spigot has set a trial in his home state of Maine, where attorneys for Georgia and Florida agreed to begin arguments on Halloween. In the meantime, each side stated they continue to pursue settlement of the federal lawsuit Florida filed under the Supreme Court's original jurisdiction, seeking to push Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin including Lake Lanier, back to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Ralph I. Lancaster, Jr., the 86-year-old veteran Supreme Court appointee, has repeatedly advised the states to settle out of court rather than live with a costly decision he stresses neither will like. The states chose a nationally known mediator whose name, oddly enough, has been kept secret by Master Lancaster’s order. Recent status reports filed by the attorneys indicate meetings between the mediator and high level state officials were continuing before trial. The parties reportedly participated in multiple one-on-one telephonic discussions with the mediator; exchanged further confidential mediation proposals; and met face-to-face in Atlanta with the mediator. Except to hear progress reports, Master Lancaster wants no part of the mediation process. He denied Florida’s suggestion to talk with the mediator, saying “'I have no intention of invading (the process) or influencing or discussing with the mediator anything that's going on.'" See news item here-- http://bit.ly/2apC4l5 and docket here-- http://bit.ly/2aMQVJH

Gangs Make Peace

Rapper The Game along with anti-gang activists, Police Chief Charlie Beck, Will.I.Am., and rival Los Angeles gang members gathered at a community center this month to bring an end to gang violence. The Game shared a powerful story about the recent loss of a former gang member he grew up with in foster care before calling on the crowd to make the world a better, less violent place. Some 2,500 responded to his invitation by arriving at the summit. Back in the era of Rodney King and the LA Riots of 1992, hundreds of young black men from warring factions of the Blood and Crip gangs gathered not to protest the Rodney King beating, but to declare a ceasefire. This new peace treaty included Crips, Bloods and ESEs. In a graphic example of change, a Blood and a Crip took off their red and blue T-shirts, handed them to each other and embraced in friendship. Reportedly, The Game, whose real name is Jayceon Terrell Taylor, has been vocal about building a better bridge between police and their community. He and Snoop Dogg led a march to police headquarters in Los Angeles earlier this month following the deaths of Alton Sterling and Philando Castle. They met with the mayor and police chief to discuss ways to improve things between cops and minorities. The LA police chief said about 1,000 people were shot last year. Almost 300 of them died and 80 percent of the victims and 80 percent of the shooters were young men of color. See news stories here-- http://lat.ms/2a1kBzG and http://bit.ly/2ao3sRx and http://bit.ly/2aEWCK1

Join me for PMI in Orlando 8/21!

On August 21, 2016, I will be joining my colleagues on an ethics panel at the Professional Mediation Institute at the Orlando Marriott World Center. Our panel will address ethics, professionalism and practices unique to mediation. Common and uncommon problems that arise complicating the settlement process will be discussed as well. Other speakers will address confidentiality, diversity, domestic violence and winning strategies to employ in negotiating a settlement. Top mediators from Florida and around the nation are expected to attend. This event takes place during the WCI360 worker's compensation conference, but is not about that substantive area of law or those types of litigated cases. PMI registration includes access to 16 hours of CME/CLE, so you can fulfill a two-year credit cycle requirement in just one meeting. I have been attending this conference for many years and was last a speaker in 2013 on the subject of commercial mediation. This conference is the same month as the Florida Dispute Resolution Center's annual DRC meeting, but the continuing mediator education is more geared for Circuit-Civil Certified Mediators and continuing legal education practictioners who use mediation to resolve lawsuits. The program has been endorsed by The Florida Bar Alternative Dispute Resolution Section's Executive Council, on which I sit. The theme this year is "Getting the Most out of Mediation: Tips and Tools for Everyone Who Attends Mediation." See more here-- www.pmi360.com/2016-mediation-institute and registration details-- www.pmi360.com/register

Primate Proclivity for Peace?

I recently read with great interest about Frans de Waal's work studying primate behavior in The New York Times Book Review of Are We Smart Enough To Know How Smart Animals Are? Empathy, cooperation and fairness seem like distinctly human traits, but biologist Frans de Waal explains why animals might share those same qualities. He maintains that for centuries, our understanding of animal intelligence was obscured in a cloud of false assumptions and human egotism. A primatologist examining boundary lines between our species and others for thirty years, he is said to painstakingly untangle the confusion through research, revealing a wide range of animal capabilities. He studied prosocial choices in apes, showing yawn contagion, synchronization, consolation behavior, and altrusim. Even after fighting viciously, Chimpanzees reportedly reconcile due to saving a valuable relationship damaged by conflict. In a Ted Talk, he shows video of Capuchin monkeys which demonstrated empathy when there was clear inequity in being rewarded. Evolved morality exists in his opinion, rather than believing our bodies may have evolved from monkeys, but that our brains are their own miraculous and discrete inventions. He argues cognition must be understood as an evolutionary product with what he calls “cognitive ripples.” We tend to notice intelligence in primates because it’s most conspicuous. It looks the most like our intelligence. However, “after the apes break down the dam between the humans and the rest of the animal kingdom, the floodgates often open to include species after species.” See book review here-- http://nyti.ms/1XVmBu0 and Ted Talk here-- http://n.pr/1qksDWZ

Why Can't We All Just Get Along?

Recent shootings by law enforcement caught on video and now snipers taking out police officers have me thinking of the refrain from Rodney King, "Can we all get along?" Though now almost a quarter century ago, it seems like the LA riot events was last time we really had a national debate about police brutality and racial injustice. Peacemakers such as Doug Noll, with whom I've taken courses at the National Academy of Distinguished Neutrals, remind us that neuroscience has established an irrefutable fact: human beings are emotional, not rational. Still, we have a belief that humans are distinguished from all other creatures because of their rationality. To be irrational is to be something less than human. People engaged in peacemaking long assumed that despite the emotions of conflict, people are fundamentally rational. The truth is, we are ninety-eight percent emotional and about two percent rational. Research demonstrates that we must strive to be far more aware of neuropsychological factors of human conflict. Noll believes these factors explain much about conflict behaviors. They also provide insights about new interventions in intractable conflicts. Conflict starts with a problem serious enough to cause anxiety, reflected in a feeling of insecurity. When anxiety or insecurity is first experienced, he says we have a choice between reactivity and reflection. If we do not make a choice, Noll says our default mode is to be reactive. By being reactive, we might reject the problem, give up, or feel inadequate to deal with the problem. If the problem is persistent, we might struggle or exit. As the conflict develops, we perceive it as a threat, and we may blame, attack or withdraw. These behaviors constitute our fear reaction system. If the choice for reflection is made, we have learned to reflect, relate, and relax. The insecurity arising from a conflict situation is recognized as pointing to a pathway of growth towards greater peace and self-realization. The brain's altruistic, cooperative social attachment systems actually allow us to be compassionate, tolerant, and exhibit loving-kindness. Perhaps through this, we can engage in conflict resolution and achieve peace. See more here-- http://bit.ly/29zdOwA and http://timelines.latimes.com/los-angeles-riots/

OneOrlando Fund Consults Neutral

Sadly, one of the roles of a modern full-time neutral in dispute resolution practice is administration of vicitm funds. While we are still reeling from recent events from the Pulse massacre here in Orlando, it is heartwarming to see the outpouring of support and generosity from around the globe. To ensure that funds are dispersed in a timely, accountable and transparent manner, the OneOrlando Fund is apparently consulting with victim fund expert Kenneth R. Feinberg. A professional neutral, he served as the Special Master for the September 11th Victim Compensation Fund of 2001, the Claims Administrator for the One Fund Boston, the Virginia Tech Hokie Spirit Memorial Fund, the Aurora Victim Relief Fund and for the BP Oil Spill Claims Administration as the Compensation Fund Administrator. He opines that the immediate issue is whether multiple funds are competing which there seem to be, as well as individual GoFundMe campaigns. He thinks one fund is always the best way to go, allowing payment processing to be coordinated with a common criteria. He says a calculation of compensation cannot be determined until the aggregate amount is known. Interestingly, he most recently weighed in on Deflategate by filing an amicus brief in that appeal as both neutral and new to the dispute. He asserts in his amicus brief that the enforcement of Tom Brady’s suspension would trigger consequences well beyond sports. He contends it would destabilize the system of arbitration in the Unites States and that it would make it harder for himself and others like to him to carry out their duties. While it will be interesting to see how that appeal goes, for the moment, he is helping Orlando deal with the largest mass shooting in the country. See more here-- http://on.si.com/294OCid and interview http://www.wbur.org/hereandnow/2016/06/17/donations-orlando-distributed and One Orlando Fund (Strengthen Orlando, Inc.) information here-- https://www.oneorlando.org/aboutus.htm

New ESI Order in Palm Beach 7/1

In Palm Beach County, Florida there is a new discovery of electronically stored information (ESI) order waiting for practitioners in cases involving business torts, professional malpractice, antitrust, business transactions, IP, shareholder derivative actions, securities, or trade secret cases. Circuit Court Judge Meenu Sasser of the 15th Judicial Circuit Court has even mandated that within 20 days of the order, the parties are to schedule a “meet and confer” conference which shall occur within 60 days of service of the Order. It is interesting to note that The Florida Bar Civil Rules Standing Committee voted against a federal rules style mandatory meet and confer when I chaired the effort to amend the rules to include ESI. Counsel for the parties are to discuss whether this cases are to be considered complex litigation case, as in Fla. Rule Civ. Pro. 1.201. Topics for the conference include: ESI custodian information; structure of client computer systems, software, devices, and relevant email information; ESI policies; need for an ESI clawback agreement; costs; and whether ESI issues could significantly protract the litigation. Hmm, looks like a call for effective Special Masters or E-Neutrals... See Standing Order effective for new cases starting July 1, 2016 here-- http://15thcircuit.co.palm-beach.fl.us/documents/42596/0/ESI-Order.pdf

Special Master Services Streamline Discovery

Having chaired the effort to amend the Florida Rules of Civil Procedure to include Electronically Stored Information (ESI), I often remind courts, counsel and litigants that neutrals are now an available avenue to resolve electronic discovery disputes. We are prepared to serve as Special Masters (Special Magistrates under the Florida Rules of Civil Procedure) to assist in e-discovery issues in state and federal matters, including: hosting federal Rule 26 “Meet and Confer” sessions; facilitating cost effective, mutually cooperative, and relevant e-discovery programs; procuring Mediated Case Management or Pretrial Stipulations under Florida Rules 1.200 or 1.201; monitoring discovery compliance and outcomes, and adjudicating legal or technical disputes if necessary. In given cases, by agreement, we neutrals can also serve as “e-discovery mediators” or E-Neutrals to conduct negotiated settlement discussions to resolve issues relating to identification, preservation, collection, review, and production of ESI. Early, proactive involvement of an e-discovery special master or mediator educated in the realm of electronic discovery may yield immediate benefits in both the efficiency and economy of litigation, keeping the discovery process on track to producing the best information available for trial or settlement. Our firm just finished a team in camera review of multiple thousands of documents hosted on kCura's Relativity 9 platform for the Complex Business Litigation Division of the Ninth Judicial Circuit Court in Florida, where I once served as a General Magistrate under Chief Judge Belvin Perry. These efforts are cost effective and can save time, as well as aggravation of the judicial officer who will later rule on dispositive motions and preside over the case. See more here-- http://www.uww-adr.com/services/e-discovery-services

Next Month Rev. Arb. Code Applies Across the Board in FL

Commencing on July 1, 2016, all arbitration agreements, regardless of their date, will be governed by Chapter 682, Fla. Stat. (2013), The Revised Florida Arbitration Code. At present, the statute does not apply to any arbitration that commenced, or any right that accrued, before July 1, 2013. Pursuant to the revised code which is based on the Revised Uniform Arbitration Act (RUAA), it automatically applies to all non-FAA arbitration agreements entered into after July 1, 2013. For now, it can still apply to arbitration agreements made before its effective date of July 1, 2013, if all the parties agree. Otherwise, the law existing at the time of the arbitration agreement applies through June 30, 2016. Revision applicability should be of interest to legal professionals enforcing arbitration provisions common to industries throughout Florida, including: construction, consumer, insurance, employment, securities, and commercial contracts. It is also important to note that Florida’s statutes of limitation (SOL) apply to arbitrations. Florida’s SOL time frames are contained in Chapter 95, Fla. Stat. and apply to any “civil action or proceeding.” Fla. Stat. § 95.011 does not expressly define “action” or “proceeding.” The use of this undefined phrase was the subject of significant debate in securities arbitrations a few years ago. Without reference to Florida’s SOL, securities firms, as well as foreign and domestic companies conducting business in this state, were faced with rewriting their arbitration agreements to provide an express limitations period. Because of the uncertainty associated with the enforceability of such provisions, some may have avoided doing business in this state altogether. The Supreme Court of Florida recently rejected arguments that the legislature did not intend to incorporate arbitrations within its reference to proceedings such that an arbitration proceeding is an “action” broadly defined to encompass any “civil action or proceeding." Arbitration proceedings are utilized in a wide array of contexts and not applying statutes of limitation would permit parties to wait to bring a claim until documents or witnesses are difficult to locate-- a situation that would significantly increase the time, effort, and expense to resolve a dispute. See more in the revised statute here-- bit.ly/1SZFP1g and Fla. S. Ct. decision on SOL in arbitration here-- http://caselaw.findlaw.com/fl-supreme-court/1631334.html

Join us in JAX for CME 6/2!

This Thursday, June 2, 2016, at the Florida Coastal School of Law, 8787 Baypine Road in Jacksonville, I will take part in a legal educational seminar geared for mediators. The course is eligible for up to 8.0 Continuing Mediation Education (CME) hours, including 4.0 Ethics, 2.0 Domestic Violence, 1.0 Diversity and 1.0 General credit. Mediators are required to self-report hours applicable to their areas of certification at the time of their renewal. (For more information on the CME requirement, visit www.flcourts.org.) Additionally, organizers have applied for accreditation for 8.0 General Continuing Legal Education (CLE) credits, including 4.0 Ethics Credits. (Seminar credit must be reported to The Florida Bar to satisfy CLE requirements. For more information, contact The Florida Bar at 800-324-8060, ext. 5842, or visit www.floridabar.org.) At 1:00 p.m., colleagues Michelle Jernigan, and Lawrence Kolin of the Orlando office of Upchurch, Watson White & Max Mediation Group, will present “How Do You Deal with This?” The ethics presentation will help fellow mediators anticipate, understand and be prepared to cope with some of the really difficult problems mediators encounter in everyday conferences. This section will also be interactive, dealing with real-life ethical dilemmas and practical quandaries as part of the mediation process. To see the full eight-hour agenda and register, visit www.jaxbar.org/register-event/?events_id=312.

Free Arbitration CLE 6/1/16 - Join us!

Arbitration has been a hot topic this year, whether in the form of coming changes to consumer and class arbitration or developments in cross-border and international agreements. Some practitioners prefer including these clauses in their contracts, while others seemingly avoid including dispute resolution before a neutral or panel of neutrals as an option to avoid court when disagreements arise. Next month, I will be joined by Gary Salzman, Esq. and Beppy Owen, Esq. at the Orange County Bar Association on June 1, 2016 for an Arbitration CLE hosted by its Business Law Committee. We plan to cover the nuts and bolts of the process, as well as hints in avoiding traps while drafting arbitration provisions at the outset. We will also discuss qualifications of the arbitrator and the perception that subject matter expertise is helpful to the dispute resolver selected. This complimentary CLE also addresses recent trends in this venerable form of alternative dispute resolution and will take place from 12:00 p.m. – 1:00 p.m. at the OCBA Center, 880 N. Orange Ave. in Orlando. The registration deadline is May 30, 2016. Please RSVP to Marie West at 407-422-4551, ext. 233. See more information here-- http://www.orangecountybar.org/products/seminars and http://www.attorneyatlawmagazine.com/orlando/arbitrator-lawrence-kolin-speak-ocba/

Arbitration Attacked

The right of parties to avoid court and arbitrate contractual disputes comes from the Federal Arbitration Act of 1925. It provides that agreements to arbitrate disputes are enforceable. Decades after becoming a standard form of alternative dispute resolution, arbitration clauses were employed as a method to defeat class action lawsuits. Where parties agreed to arbitrate disputes, claims could still be brought, but on an individual basis in arbitration. New rules being promulgated by the Consumer Financial Protection Bureau or CFPB would allow class-action lawsuits, setting up the latest clash between the banking industry and consumers. The CFPB aims to prohibit financial companies from using mandatory arbitration clauses as a way to block class-action lawsuits, in which a large number of plaintiffs with similar complaints band together. Companies still would be able to require consumers to enter arbitration to resolve individual disputes. Critics maintain this will result in higher litigation costs for banks, which they will offset either by raising the costs of consumer loan products or reducing services. Arbitration clauses have become widespread in recent years, aided by a string of court rulings that have limited the ability of consumers to file lawsuits. The agency’s proposal would be the first significant check on arbitration since recent U.S. Supreme Court decisions that affirmed its widespread use. The landmark Supreme Court case, AT&T Mobility v. Concepcion, allowed businesses to enforce class-action waivers in contracts. The new rule is expected to take effect next year after a 90-day public comment period to federalregistercomments@cfpb.gov and drafting of the final rule. See more here-- http://on.wsj.com/24Cl284 and http://nyti.ms/1QSVNF0 and http://files.consumerfinance.gov/f/documents/CFPB_Arbitration_Agreements_Notice_of_Proposed_Rulemaking.pdf

SEC Drafts Rules For Mediation

Earlier this year, the Securities and Exchange Commission (SEC) approved a Financial Industry Regulatory Authority (FINRA) proposal to merge its dispute resolution subsidiary, FINRA Dispute Resolution, Inc. into and with its regulatory subsidiary, FINRA Regulation, Inc. FINRA continues to operate a dispute resolution program, now as a separate department within FINRA Regulation under the name of the Office of Dispute Resolution. Now, the SEC has proposed draft rules for mediation specified in the Corporation Code and other special laws it implements. The guidelines also apply to intra-corporate issues voluntarily brought to the commission by the parties concerned, provided the disputes have not yet been lodged in court. The SEC has the responsibility to determine the aspects of the dispute that can be mediated and those that cannot. Despite the passage of the Securities Regulation Code (SRC), which transferred the jurisdiction over intra-corporate cases to the regular courts, the SEC has retained its power to handle residual cases. The mediation rules are available for comment until May 25, 2016, and do not cover administrative cases including petitions for cease-and-desist orders for violations of the Corporation Code, the SRC, and other laws and circulars issued and implemented by the commission, which are subject to administrative sanctions. See more at-- http://www.finra.org/industry/notices/16-04#sthash.n4dxbJBY.dpuf and http://bit.ly/1SQzpjT

Deflategate and latest NFL vs. NFLPA arbitration ruling

In a decision that might impact the ongoing Deflategate saga, this month an Arbitrator ruled that NFL Commissioner Roger Goodell is acting within his rights when he places a player on the exempt list for violating the league’s Personal Conduct Policy: “The Article 46.1(a) ‘action’ that is embodied in the notice to a player and that will be at issue in the Article 46.2(a) appeal (heard either by a hearing officer or the Commissioner himself) must be an ‘action’ of the Commissioner...[T]here is no basis either in the contractual documents or the past practices of the Parties to conclude that the Commissioner may completely delegate to a disciplinary officer or anyone else...” If applied to the Brady case, this ruling could make it improper for Goodell to have delegated his powers to football operations executive Troy Vincent who imposed the punishment. Reportedly, the reason Goodell had Vincent “impose” the discipline was clear-- the commissioner wanted to serve as the arbitrator at the inevitable appeal hearing, because actual independent arbitrators had ruled against him too many times in recent cases-- a role he could not play if he were to be ruling on his own ruling. By delegating the power to Vincent, Goodell remained “impartial” in the process. Apparently, the NFLPA objected in a letter just days after the ruling, stating Vincent had no authority to impose discipline on Brady so it must be set aside. Though an arbitrator can’t force the NFL to re-do the disciplinary process, if the Brady case gets remanded to Judge Richard Berman to examine this issue, it may impact the case of Tom Brady and the NFL. Judge Berman previously used Article 46 to favor Brady’s side over the NFL’s last year, but did not reach Brady’s other claims which included improperly delegating authority to discipline players for conduct detrimental to the NFL. Evidently, NFL precedent demonstrates that, in Article 46 arbitration appeals, players must be afforded the opportunity to confront their investigators. The Deflategate case is currently being decided by a three-judge panel in the United States Court of Appeals for the Second Circuit which heard oral arguments last month. See story here-- http://cbsloc.al/1oVdYTS and http://bit.ly/1MR0UL5 and forthcoming decision at http://www.ca2.uscourts.gov/decisions.html UPDATE: A day after this post, based on a 2-1 vote of a three-judge federal panel, the appeals court reversed the district judge's ruling, siding with Commissioner Goodell over the NFL Players Association.

NFL No-Cap Concussion Settlement Approved

Just before the start of the 2013 professional football season, thousands of former players settled with the National Football League (NFL) over concussion-related suits. The league agreed to pay for medical benefits and injury compensation to retired players, as well as to fund medical exams, research and to pay litigation expenses. After that first deal was rejected by the trial court, a second deal doing away with a cap on the fund from which injured former players would draw was reached. The lower court, however, kept out a class of players who had argued that they should benefit from the settlement because in the future they may develop the disease chronic traumatic encephalopathy (CTE). Failure to compensate players with CTE was the primary objection to the previously approved deal which only compensates for CTE if the player has died. Several players appealed to the United States Court of Appeals for the Third Circuit. The appeals court noted that the research surrounding CTE is still nascent. Currently, CTE can be detected only by an autopsy of the brain, and the families of several former players who died and were found to have the condition stand to receive millions. Those awards apply only to players found before the settlement was approved. Appellate judges in affirming approval of the deal stated,"This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair." At the outset, the district judge had signaled a preference for settlement of the case, believing that the interests of all parties would be best served by a negotiated resolution. The settlement was characterized as avoiding litigating thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and team owners claim they wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The underlying case accused the league of hiding concussions to protect its image. See more here--http://nyti.ms/1pbsOWv and http://ble.ac/1qTAD4I

Arbitration to the Main Stage

In an action by several exotic dancers and entertainers against the operators of Rachel’s Adult Entertainment and Steakhouse in West Palm Beach, a federal judge granted a the strip club’s motion to compel arbitration in a Fair Labor Standards Act (FSLA), finding the entertainers' objections to agreements they signed unpersuasive or incorrect. Plaintiffs sought unpaid wages, claiming they were misclassified as independent contractors and that defendants failed to pay them a proper minimum wage and overtime as workers. Enforcement of the arbitration clause had been objected to because it was asserted all pages were not provided to dancers when they signed the agreements, which they claimed was under duress. Others argued they did not understand the arbitration clause due to language barriers. However, testimony given at an evidentiary hearing was deemed not fully credible by U.S. District Judge Robin Rosenberg. The club provided evidence that the documents were prepared by a third party who routinely stapled the pages together before delivering them. “The court can discern no credible basis for defendants or agents of defendants to choose to extract signature pages for certain dancers, and not others,” Judge Rosenberg wrote. “Thus, the court concludes that plaintiffs must rise or fall together. Either defendants systematically engaged in a pattern of practice of removing signature pages at the time of execution or defendants did not.” She also found the dancers’ claim of duress was without merit because the defendants provided evidence that no one was penalized for asking for more time to read the documents. “Florida law also places a strong duty on signatories to read the contents of the contract before signing,” wrote the court. Apparently, language barrier claims were exaggerated and mostly raised by a claimant who provided substantial testimony in English. The judge further stated that FLSA claims are routinely arbitrated, that the plaintiffs’ counsel had recently moved for arbitration on FLSA claims in an analogous case, that the arbitrator has the authority to sever portions of the agreement that are invalid or unenforceable, and that the Eleventh Circuit has held that when an arbitration agreement invokes the rules of the American Arbitration Association (AAA), as this one does, then it is clear the arbitrator is expected to determine if the agreement is valid. See more on story here-- bit.ly/1TvUgLm and case-- Monteverde et al. v. West Palm Beach Food and Beverage LLC, case number 9:15-cv-81203, U.S. District Court for the Southern District of Florida

Special Master Scolds in Water Wars

A 25-year water war between Florida and Georgia continues as Special master, Ralph Lancaster, previously appointed by the U.S. Supreme Court to help resolve the dispute, expressed dismay this month at the lack of progress toward settlement. Lancaster already urged attorneys for each state to settle the water wars case amongst themselves, rather than risk an unsatisfactory outcome for all involved. The federal lawsuit features Florida’s ailing oyster industry against Georgia’s right to use Chattahoochee River water across metro Atlanta. Florida states that Georgia’s overconsumption of water in the Apalachicola-Chattahoochee-Flint River Basin, which includes Lake Lanier, is creating economic hardship, particularly on the oyster industry in the Florida Panhandle region's Apalachicola Bay. Georgia also seeks to maintain full use of the Flint River and its tributaries for farmers in southwest Georgia. The rivers join at the Florida border, becoming the Apalachicola River. Crucial to Florida's seafood folks is a fresh water-salt water balance for oysters to survive in the Apalachicola Bay. There's been no material progress on a global settlement since last year and the Special Master declined to extend this marathon by pushing pre-trial expert deadlines. He accused legal teams of ignoring earlier suggestions to pare down discovery evidence to basic, hardcore issues and instead plunging “even deeper into discovery of hundreds, perhaps thousands, of complex issues that will ultimately be left on the wayside, millions of pages of hard copies and hundreds of gigabytes of electronic files.” Since agreeing on a mediator, the states have only reported forming a basic mediation framework. Lancaster said in a teleconference of the parties, “Let me suggest...that if you had invested up to 10 percent of the effort and time and expense you have used in discovery on mediation, we would not be here spinning our wheels.” See more here-- bit.ly/1USyRNo

China Sea Arbitration

Conflicting claims over a group of uninhabited China Sea islets has led to calls for international dispute resolution. As there has been no bilateral dialogue on resource development in the East China Sea in recent years, Japan's ruling party is urging Prime Minister Shinzo Abe's government to consider seeking international arbitration over China's drilling activities, mirroring similar action taken by the Philippines. Last year, Japan called on China to halt construction of oil-and-gas exploration platforms in the East China Sea. At the time, Tokyo accused Beijing of unilateral development despite a 2008 agreement to maintain cooperation on resources development in the area, where no official border between them has been drawn. China maintains it has a right to drill in the East China Sea close to waters it disputes with Japan. The Philippines has brought a case in the Permanent Court of Arbitration (PCA) in The Hague about its dispute with China in the South China Sea. China reportedly reacted angrily and has pledged not to participate. The PCA was the first international organization for peaceful civil dispute resolution between states through arbitration, and is nearly fifty years older than the International Court of Justice and 100 years older than the International Criminal Court, having been established in 1899. Arbitration is an alternative to civil litigation, but the arbitrator, in place of a judge, can still usually bind the sides to follow his decision. See full story here-- reut.rs/1Uf7Xiu

Sheen 'Winning' Argument For Sex Arbitration

Charlie Sheen and his former sex companion Brett Rossi are being sent to arbitration to determine whether Rossi's lawsuit against Sheen over his previously undisclosed HIV status will be decided by an arbitrator or a judge. Apparently, Sheen's girlfriend signed a non-disclosure agreement (NDA) that included a mandatory arbitration provision. Reportedly, Sheen's attorneys asked the court to send the matter to arbitration, while Rossi's attorneys argue the entire agreement is illegal and the validity of the contract should be decided by a judge. A Los Angeles Superior Court has now ruled in favor of Sheen's petition to compel arbitration, finding "The arbitration agreement expressly indicates that any questions concerning whether or not the agreement should be resolved by way of arbitration are left to the arbitrator." The couple's agreement “purports to govern ‘any and all disputes, claims or controversies between us of any kind or nature whatsoever.’” The court rejected arguments that because the purpose of the NDA was to facilitate sex for money the entire agreement is void. An arbitrator will now decide arbitrability as has been the trend in legal rulings of late. See story here-- http://bit.ly/1R8YbhF

AHLA Amends Arbitration Rules

The American Health Lawyers Association (AHLA) developed the first national roster of arbitrators, mediators, and hearing officers with health law expertise. It remains the only national service dedicated exclusively to resolving disputes in the health care industry. Its board approved amendments to the current rules, which will take effect on March 14, 2016. These are the key substantive changes:

Default Timeframe: The goal is now to issue a final award in twelve months, not eight.

Filing Fee for Counterclaim: To file a counterclaim or third party claim, a party must now pay the same amount as the fee for filing the claim. 

Sanctions for Non-Payment: Arbitrators are now explicitly authorized to sanction a party who fails to pay a deposit, unless the failure is due to financial hardship. 

Filing Fees for Consumers: Consumers no longer must pay a filing fee if a claim is submitted pursuant to a court order. The respondent must pay this fee instead.

The new rules are posted on the AHLA website here-- www.healthlawyers.org

Sanctions for Shaq Skipping and Skyping into Mediation

In a Florida federal case, lawyers were sanctioned for advising their client, former NBA All-Star Shaquille O’Neal, that he didn’t need to personally attend court-ordered mediation. United States District Judge James Cohn of the Southern District of Florida ordered lawyers to pay $13,000 to cover mediation costs for a plaintiff who sued Shaq for allegedly ridiculing his appearance. Plaintiff has a rare genetic disorder that causes tooth loss and facial deformities and has since started an anti-bullying campaign on Facebook that attracted 20,000 members. Shaq posted a photo of himself on Instagram and Twitter stating "smile people" and imitating plaintiff's facial expressions. The lawsuit alleges defamation and invasion of privacy, though Shaq maintains there was no right to privacy because the photos were already on Instagram. He also said his conduct wasn’t so outrageous or extreme as to establish liability. Shaq reportedly attended via Skype and sent a representative to participate on his behalf, due to a television appearance conflict on the day of the mediation. The mediation order stated pursuant to Local Rule 16.2.E, the appearance of counsel and each party or a representative of each party with full authority to enter into a full and complete compromise and settlement is mandatory. The local rule says all parties shall be physically present at the mediation conference “unless excused in writing by the presiding judge.” Counsel argued unsuccessfully that the magistrate judge’s mediation order superseded the local rule, but local rule requires a federal district judge, not a magistrate judge, to excuse a party’s attendance in writing. See stories here-- http://bit.ly/1oLnNos and http://bit.ly/1oLnNos and local rule for court annexed mediation in the Southern District of Florida here-- http://1.usa.gov/1SYVSxx

Congress Considers Arbitration

This month, U.S. Senator Patrick Leahy introduced the Restoring Statutory Rights Act and Interests of the States Act of 2016. If it becomes law, it would exempt from the Federal Arbitration Act (FAA) claims brought by individuals or small businesses arising from violations of federal or state law, the U.S. Constitution or a state constitution. Accordingly, it would permit these claims to proceed in a court of law. Apparently, under the measure, arbitration is still an option if the parties voluntarily choose to arbitrate a dispute after it arises. The bill would also allow federal and state courts to apply their respective jurisdictional laws concerning contract interpretation to find arbitration provisions unconscionable or unenforceable, notwithstanding the FAA. Finally, courts, not arbitrators, would have the essential task of determining and enforcing arbitrability. Congress is also considering the Arbitration Fairness Act of 2015, introduced last year by Senator Al Franken, which would prohibit the use of forced arbitration in consumer and employment disputes. That bill is still in committee, as is a companion bill in the House of Representatives. These Members of Congress take issue with recent majority decisions by the U.S. Supreme Court upholding federal preemption under the FAA. Arbitration remains a worthy alternative to litigation and perhaps these efforts, which pertain mainly to consumer disputes, will stop the backlash that has seemingly taken place and given the whole process a bad name. See more on S. 2506 and S. 1133 here-- www.congress.gov

Determining Arbitrability In Middle District Florida

In a recent decision on a Motion to Compel Arbitration and Stay Proceedings here in the federal Middle District of Florida, Senior Judge John Steele found that while arbitrability is generally a question reserved for the trial court, an arbitrator may interpret the scope of the arbitration agreement if the parties agree and provide for such delegation "clearly and unmistakably" within the agreement. Authorities for this finding included Terminix Int'l Co. v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1332 (11th Cir. 2005) and Norfolk S. Ry. Co. v. Fla. E. Coast Ry., No. 3:13-cv-576-J-34JRK, 2014 WL 757942 (M.D. Fla. Feb. 26, 2014). For this holding, Judge Steele also relied on prior case law from the Supreme Court, as well as the neighboring Southern District:

"[T]he question `who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995). See also Shea v. BBVA Compass Bancshares, Inc., No. 1:12-cv-23324-KMM, 2013 WL 869526 (S.D. Fla. Mar. 7, 2013) (citing Terminix Int'l Co., 432 F.3d at 1332) ("[W]hen parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to the arbitrator").

Here, the court found delegation provisions clearly and unmistakably delegated the determination of arbitrability to the arbitrator. Pursuant to the delegation clauses contained within the arbitration provisions in the instant case, the court returned the determination of whether or not a Telephone Consumer Protection (TCPA) claim is subject to the arbitration agreement to the arbitrator. Plaintiffs agreed to Defendant's request to stay the action pending the determination by the arbitrator, while reserving their right to continue to proceed in court if the arbitrator rules that their TCPA cause of action is not subject to the arbitration agreement. Harrington v. Regions Bank, No. 2:15-cv-522-Ftm-29MRM (M.D. Fla. Jan. 29, 2016) See opinion here-- bit.ly/1SInxD8

Syria Talks Stutter

Just days after Syrian talks in Geneva began to try and end five years of war, the United Nations mediator called for a temporary pause for three weeks due to differences between government and opposition delegations on the priority of humanitarian issues. UN Special Envoy Staffan de Mistura asked for an immediate implementation of a humanitarian initiative before substantive talks started. He stressed both sides insist they are interested in having the political process begin and set February 25th for the next session. Mediator de Mistura made clear he is under no illusions about the difficulties in ending a war that has killed over 250,000 people, sent over 4 million fleeing the country, displaced 6.5 million internally, and put 13.5 million people inside the country in urgent need of humanitarian aid. Reportedly, he expected posturing, walk-outs and disappointments. However, he was not frustrated, but rather determined, yet realistic. He emphasized the UN cannot allow simple procedural matters to "become more important than actually the results of humanitarian situation of the Syrian people who have been waiting for us to deliver this time, not a conference, but something concrete for them.” Talks between the sides are not face-to-face but indirect, with parties caucusing in different rooms. The International Syria Support Group (ISSG) comprising the Arab League, the European Union, the United Nations, and 17 countries including the United States and Russia, laid the groundwork for the Geneva talks at a meeting last fall. Hopefully, there will be progress to report later in the month. See more here from www.un.org-- bit.ly/1QfpGzz

Appellate Mediation Sanctions for Non-Attendance

Participants and counsel are reminded of the importance of appearance at mediation in a recent opinion of the Fifth District Court of Appeal. In an appeal from a final judgment, Florida's 5th DCA entered an order referring the matter to appellate mediation (a program in which I've participated since 2001). The order specifically stated that representatives of the parties with full settlement authority were required to attend the mediation in person, unless excused from attendance by the court. The order further stated that the failure to appear could result in the imposition of sanctions. At the commencement of the mediation, no representative appeared for appellant which also provided no certification of full authority to settle. Appellees objected to the absence of the representative and to the limited authority of the insurance company representative. The mediation proceeded without a waiver of objections, resulting in an impasse. Rule 9.720 of the Florida Rules of Appellate Procedure (which I helped amend as a corollary of civil procedure rule 1.720) governs appellate mediation procedures and provides that if a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion of a party or upon its own motion, may impose sanctions. The 5th DCA cited in their interim opinion awarding sanctions, previous holdings in Carden & Associates, Inc. v. C.O.D. Trees Partnership, 83 So. 3d 862 (Fla. 5th DCA 2012) and Carbino v. Ward, 801 So. 2d 1029 (Fla. 5th DCA 2001), finding them appropriate for a party's failure to appear at a court-ordered mediation, even though an insurance company representative was present. The court also referenced Mash v. Lugo, 49 So. 3d 828 (Fla. 5th DCA 2010) which held imposing sanctions were appropriate against a party for failing to appear, although counsel appeared who claimed to have full settlement authority. Sanctions in the present case included all fees charged by the mediator, all reasonable attorney's fees and costs incurred in preparing for and attending the mediation, as well as the costs incurred in filing a motion for sanctions. The court reserved the right to impose additional sanctions, including dismissal of the appeal or the assessment of additional attorney's fees and costs. See slip opinion here-- HDE v. Bee-Line, Case No. 5D15-2805 http://www.5dca.org/Opinions/Opin2015/122815/5D15-2805,non-disp.op.pdf

Revised Florida Arbitration Code Reminders

It is important to remind potential parties to state arbitration that the Revised Florida Arbitration Code can still apply to arbitration agreements made before its effective date of July 1, 2013, if all the parties agree. Otherwise, the law existing at the time of the arbitration agreement applies through June 30, 2016. Commencing on July 1, 2016, all arbitration agreements, regardless of their date, will be governed by Chapter 682, Fla. Stat. The statute does not apply to any arbitration that commenced, or any right that accrued, before July 1, 2013. Pursuant to the revised code, it automatically applies to all arbitration agreements entered into after July 1, 2013. Revision applicability should be of interest to legal professionals drafting arbitration provisions common to industries throughout Florida, including: construction, consumer, insurance, employment, securities, and commercial contracts. In regard to application of Statutes of Limitation, we are reminded of the Florida Supreme Court Case of Raymond James v. Phillips, et al., No. SC11-2513 (May 16, 2013) holding that Florida’s statutes of limitation apply to arbitrations. Florida’s SOL time frames are contained in Chapter 95, Fla. Stat. and apply to any “civil action or proceeding.” Fla. Stat. § 95.011 does not expressly define “action” or “proceeding.” The use of this undefined phrase was the subject of significant debate in securities arbitrations a few years ago. Without reference to Florida’s SOL, securities firms, as well as foreign and domestic companies conducting business in this state, were faced with rewriting their arbitration agreements to provide an express limitations period. Because of the uncertainty associated with the enforceability of such provisions, some may have avoided doing business in this state altogether. The Supreme Court of Florida in Phillips rejected arguments that the legislature did not intend to incorporate arbitrations within its reference to proceedings. Likewise, the court found an arbitration proceeding is an “action” broadly defined to encompass any “civil action or proceeding." Writing for a unanimous court, Justice Pariente opined arbitration proceedings are utilized in a wide array of contexts and not applying statutes of limitation would permit parties to wait to bring a claim until documents or witnesses are difficult to locate-- a situation that would significantly increase the time, effort, and expense to resolve a dispute. See more in the statute here-- bit.ly/1SZFP1g and opinion here-- http://archive.law.fsu.edu/library/flsupct/sc11-2513/op-sc11-2513r.pdf

Subway Settlement

Remember "Where's the Beef?" This week, Subway finally settled a multidistrict federal class action suit that accused Subway of defrauding its customers over the length of its bread. Some say the Subway foot-long settlement is short on dough, but Subway has agreed to pay some money and put in place a number of quality-control measures to “help ensure that the bread sold to customers is either 6 or 12 inches long." Subway is requiring that monthly restaurant inspections “include a sampling of the baked bread to ensure it is at least 12 inches long.” Subway fast-food restaurants will use bread-measuring tools that ensure their so-called six-inch and foot-long sandwiches don't come up short. According to a memorandum supporting plaintiffs' unopposed motion for final approval of class action settlement, Subway's parent company, Doctor's Associates Inc., will be required to conduct monthly compliance inspections making sure that the restaurants' bread is the size as marketed. The settlement covers only injunctive relief and does not bar individuals from suing for money damages. Nine name plaintiffs could receive up to $1,000 each. The total payout, including attorney fees, won’t exceed $525,000, according to the terms of the deal. I often encourage parties to explore non-monetary settlement terms that add value to a deal and that couldn't ordinarily be enforced by a court order or eventual judgment by a prevailing party. The remedial measures apparently sunset after four years, so get your real foot-long BMT now! See details here-- http://www.wied.uscourts.gov/mdl-no-2439-re-subway-footlong-sandwich-marketing-and-sales-practices-litigation and here-- http://www.subsettlement.com