Monday, November 21, 2016

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

Friday, November 18, 2016

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--

Tuesday, November 15, 2016

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-- or

Friday, November 4, 2016

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--
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--