Monday, June 19, 2017

NLRB Invalidates UBER Arbitration Agreements

Last week, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) ruled an Uber Technologies arbitration agreement was unlawful. Uber was requiring its software engineers to sign an agreement that compelled arbitration of claims against the company. The ALJ found language in the agreement ambiguous as to employee rights to file charges with the NLRB, even though a provision in the agreement explicitly stated those interested in filing administrative charges could do so at the website. Uber was ordered to rescind or revise its policy to more clearly state how employees can access NLRB processes. Uber is considering appealing the decision to the full NLRB, but has not yet done so. The U.S. Supreme Court is also currently considering a case in which employers are challenging the NLRB’s view that class action waivers in compulsory employment arbitration pacts violate the National Labor Relations Act (NLRA). Given this scrutiny, companies using or considering an arbitration program to resolve workplace disputes with employees should take care when drafting and implementing the agreements to account for recent NLRB decisions and guidance. Evidently, failure to do so may result in the program being partially or wholly invalidated. See more here-- and

Saturday, June 10, 2017

CMS Reversing Arbitration Ban

The Centers for Medicare & Medicaid Services (CMS) published a final rule for nursing homes just before last fall's election that included a provision prohibiting facilities from requiring pre-dispute binding arbitration to settle disputes over resident care. The final rule, which went into effect November 28, 2016 for facilities participating in the Medicare or Medicaid programs, was seen as a prohibition on regular practice in long-term care facilities of using resident agreement arbitration clauses upon admission. CMS just announced its intention to remove the ban on pre-dispute arbitration agreements. The rule, released after the agency abandoned its appeal in a lawsuit over the matter, would allow arbitration agreements that meet certain standards. For example, such documents would need to be written in plain language, be thoroughly explained to residents and their representatives, and be understood. A party in such agreement waives the rights to sue and to a trial by jury, to participate in a class action lawsuit, or to receive any type of judicial review apart from the very limited grounds applicable to setting aside arbitration decisions. The American Bar Association (ABA) previously commented that in many circumstances arbitration can be advantageous, and residents should continue to have the choice to use it to resolve disputes. Many recent court decisions, including the latest, Kindred v. Clark out of SCOTUS have upheld enforcing such agreements. See more here-- and and

Wednesday, May 31, 2017

Judge Vacates Emergency Order for Mediation Notes

This month, in an extremely rare move, a federal judge in Washington, D.C. first issued and later vacated an emergency order to preserve the notes of a mediation session in which an attorney allegedly threatened a female partner suing the firm for gender discrimination and pay inequity. Plaintiff, Jane Doe, alleges that another of her firm's attorneys illegally threatened retaliation against her during mediation, saying she was going to be terminated. Plaintiff desired the mediator’s notes in order to prove the exchange happened. The mediator was initially ordered to preserve notes and all other documents related to the session, with no indication whether material would ultimately be found relevant or admissible in the case. Such files are typically destroyed after mediation in order to preserve the confidentiality of the mediation process which allows the ability of parties to be open in session. Florida's Mediation Confidentiality and Privilege Act has very limited exceptions. Even in cases where mediation privilege is waived with consent of both parties, any records are produced in chambers in order to protect confidentiality. Allowing mediation notes to be used in lawsuits is quite disturbing and undermines the whole process, according to experts. JAMS, the ADR provider at this mediation, argued Doe should not have requested a preservation order for session notes because it already informed both parties that the notes would not be destroyed since they were subpoenaed. Doe acknowledged that JAMS said it would suspend its policy of destroying the records until issues surrounding the production of the documents in question are resolved, but asked the court to keep the preservation order in place. Plaintiff's motion was premised on an assertion that "a preservation order is necessary to preserve crucial evidence destined for immediate destruction" and that "absent a court order, it is virtually certain that this evidence will be lost." U.S. District Judge Amy Berman Jackson found since that did not appear to be the case, there is no longer any "emergency" warranting relief, and vacated her previous order. See Jane Doe v. Proskauer Rose LLP, case number 1:17-cv-00901 and more reported here-- and

Wednesday, May 17, 2017

AHLA Arbitration Rule Changes

I have served as an American Health Lawyers Association (AHLA) panel neutral dispute resolver for about a decade. In this role, I have arbitrated cases involving medical issues, medical group practices, employment issues and disputes involving long-term care facilities There are a few rule types AHLA has depending on the subject matter-- Commercial, Employment, and Consumer. These rules are typically incorporated by reference in health care contracts by agreement of the parties and utilized upon a disagreement arising between them. Effective April 30, 2017, AHLA Dispute Resolution Service rules have changed as follows: Employment Rule 2.4 now puts the onus on the employer to pay the filing fee, at least initially, as employers generally have greater resources than employees. Commercial, Employment, and Consumer Rule 5.1 now provides that no party must pay more than one filing fee per claim. In consumer cases and some employment cases, it protects a health care provider or employer who files a counterclaim from having to pay two filing fees for the same claim. Commercial, Employment, and Consumer Rule 5.6 now vests the authority to rule on a motion to consolidate claims in the arbitrator or panel of the first claim to be filed. The rule also provides that if claims are consolidated, they will be heard by the arbitrator or panel of the first claim to be filed. Previous versions of the rules did not have a process for addressing motions to consolidate. Commercial, Employment, and Consumer cases will be assessed a $400 administrative fee if they remain inactive for more than one year because a significant number of cases required case managers be compensated for time and effort to keep the matter open. If the parties do not pay the fee, the Dispute Resolution Service can close the case after sending a single follow-up message. If a claim is arbitrated in accordance with the version of the rules in force on the date it is filed. The new rules do not apply retroactively to claims filed prior to April 30, 2017. See more here--

Tuesday, May 9, 2017

What goes on in mediation, stays in mediation

Lately, there are reports in other states of settlements being unsealed. Typically, parties in a lawsuit agree among themselves, without assistance of courts, to craft a settlement agreement with a confidentiality clause and, if necessary, enforce such by separate contract action. Counsel may not completely control confidentiality if public officials or public entities are involved or if it may impact public health and safety. In the recent case of a Kansas boy who died in a water slide accident (full disclosure: I used to represent Wet 'n Wild water park in Orlando), the $20 million settlement with the family was confidential until the local paper got involved. The Kansas City Star intervened, arguing that the amounts paid by each defendant should be released to ensure those responsible for the minor’s death were held publicly accountable. The settlement is believed to be the largest for a minor ever in that region. The boy's father is apparently a Kansas legislator whose efforts increased regulation of amusement parks as a result. A companion case of unrelated adult sisters also settled. The newspaper argued the parties responsible should be held accountable such that a financial record of the settlement is needed. Reportedly, the ride will also be taken down as part of the terms. In Florida, our Mediation Confidentiality and Privilege Act governs the disclosure of such information. Confidentiality or privilege against disclosure of mediation communications must be waived by all parties, with limited exceptions and civil remedies are available for violations. Only information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation. Of course, petitions for approval of settlements are required for minors and contain details of the facts of a case, the issues of liability, the monetary amount of damages, and settlement amount sought, as well as attorney’s fees and costs. A judge then evaluates the settlement terms to assess whether they are in the best interests of the minor. It is important to note that the parent or guardian is obligated under the law to act in the best interests of the child. However, these deals often are confidential and statutorily exempt from the provisions of public records laws. See more here: and and and

Thursday, May 4, 2017

Meet the Mediator

Our mediation and arbitration firm, Upchurch Watson White & Max Mediation group, based in Central Florida with offices throughout the state, has been profiling our neutral panel members and this month is my turn: "Lawrence has a distinguished career in Alternative Dispute Resolution. He has been a professional neutral for sixteen years. In that capacity he has served as an arbitrator, mediator, and as a general magistrate. Through his bar association work he chaired the effort to modernize Florida Civil Procedure Rules to include E-Discovery. He has also been a member of the faculty at the Advanced Judicial College, Bench Bar conference, and The Masters Conference for Legal Professionals. You may have seen his articles in the Orange County Bar Association Briefs. He is also the author of the officially listed ABA Journal "Blawg" Orlando Mediator ( Lawrence is AV® rated and has been recognized as a Florida Trend Legal Elite in Arbitration & Mediation, selected as Mediator of the Month™ in Attorney at Law magazine, and identified as a SuperLawyer™. He serves on the Executive Council of The Florida Bar ADR Section ( He was even named a Litigation Trailblazer and Pioneer™ by the National Law Journal for his innovative work in alternative dispute resolution practice. Needless to say, he has been a very welcome addition to UWWM’s panel of professional neutrals. He brings a scholarly and informed perspective to the firm and to his clients. Given his impressive resume, I thought it might be interesting to discover something about Lawrence that we didn’t know." Aw-shucks! Read my colleague's interview of me here--

Thursday, April 27, 2017

United Settles With Passenger

Perhaps in unexpectedly quick fashion, Plaintiff Dr. David Dao settled today with United Airlines after he was and randomly selected and removed from an oversold flight to make room for commuting crew members. His lawyers claimed he suffered a concussion, broke his nose and lost teeth during the ordeal. Dao can be seen hitting his head on an armrest and later with blood on his face in cell phone videos posted by other passengers on the flight. The company has since promised it will no longer use officers to forcibly remove paying customers from its flights. The incident occurred on April 9th and has caused a huge backlash against the airline on social media ever since. Early settlements are possible when both sides have problems. Typically, such lawsuits would take some time to reach a conclusion. There were some accounts of the passenger resisting and other things allegedly in his past that may have affected his ability to recover damages. Initially, United referred to Dao as "disruptive and belligerent," and praised employees for following "established protocols." United was obviously keen on mitigating public opinion damage after so much outrage by the traveling public was expressed online. Surely, this will be a future case study for public relations and risk management. In an official statement, United said they reached "an amicable resolution of the unfortunate incident that occurred aboard flight 3411. We look forward to implementing the improvements we have announced, which will put our customers at the center of everything we do." There is no shame in early resolution on either side and the deal is to remain confidential. Still, there will be plenty of speculation on whether the payment was large or small and if it even contained a non-monetary component, such as free future travel. See more here-- and and

Sunday, April 16, 2017

NCAA Student Athlete Settlement Site This Summer

The NCAA and eleven Division I conferences agreed to create a nearly $209 million fund for the benefit of current and former NCAA Division I Basketball and Football Bowl Subdivision student athletes to settle the monetary claims portion of the grant-in-aid class-action lawsuit. U.S. District Judge Claudia Wilken has granted preliminary approval to the proposed settlement of a lawsuit related to the difference in the value of a traditional college athletic scholarship and a new version that covers the full cost of attendance. The deal aims to provide money to about five years' worth of men’s basketball, women’s basketball and football players whose scholarships were limited by NCAA rules to basically tuition, room, board, books and fees. The judge wanted to create a procedure under which athletes could either dispute the amounts they would receive or claim that they are entitled to a share of the settlement if they are not initially identified as being covered by the agreement. As such, a website will be established that will allow athletes to see an estimate of the amount of money to which they would be entitled if the settlement receives final approval. The settlement does not impact another claim challenging the NCAA’s cost-of-attendance-based limits on the compensation athletes can receive while playing college sports. In those cases, the plaintiffs are seeking an injunction that would nullify the current limits. Athletes identified as being entitled to settlement money will be notified by mail, beginning in early August, but they also will be able call, email or write the claims administrator if they believe they should be covered and they do not receive the notification. The agreement maintains cost of attendance as an appropriate dividing line between collegiate and professional sports. The NCAA and conferences maintain they only settled this case because the terms are consistent with Division I financial aid rules, which allow athletics-based aid up to the full cost of obtaining a college education. See more here-- and

Wednesday, April 5, 2017

Early Neutral Evaluation: Alternative to Evaluative Mediation

In the latest issue of The Florida Bar ADR Section's New & Tips, I explore a type of Alternative Dispute Resolution that is more often used outside Florida. Early Neutral Evaluation or ENE is evolving as an effective form of ADR, given the continued high cost of litigation. This process is a corollary of mediation that puts the neutral in the role enhancing direct communication between the parties about their claims and supporting evidence. ENE can provide an assessment on the merits of the case by a neutral expert in an early reality check for clients and lawyers alike. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management. Early Neutral Evaluation can: - Enhance direct communication between the parties about their claims and supporting evidence; - Provide an assessment of the merits of the case by an experienced legal neutral, amounting to a reality check for clients and lawyers; - Identify core issues in dispute while assisting with discovery planning (including electronically stored information); and - Facilitate settlement discussions when requested by the parties before the evaluation. A court-appointed neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel, once the parties request ENE. Following presentations consisting of a confidential exchange of factual information, the evaluator identifies areas of agreement, clarifies the issues and encourages the parties to enter into any stipulation or agreement that is feasible, including settlement. The parties’ formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary and the monetary estimate of continuing toward trial. Read more here--

Friday, March 31, 2017

Nuclear Option: Mediation

A multibillion-dollar fight over who should pay for the San Onofre nuclear plant failure will go to mediation with the mediator from the recent NFL owners and players settlement, according to a joint filing with the Ninth U.S. Circuit Court of Appeals and the California Public Utilities Commission. Lawyers report that Layn Phillips will host an initial conference by telephone and then in-person mediation sessions this summer. Phillips, a former federal prosecutor and judge, will try to resolve the complicated dispute over almost $5 billion in costs stemming from the premature shutdown of the California coastal power plant amid a radiation leak in 2012. Any settlement would have to be approved by the federal appeals court, which took the case last year when consumers sued the commission and Edison over the original terms of a settlement agreement. The commission which ordered the latest round of negotiations, also would have to approve any revised agreement. The 2,200-megawatt nuclear plant along the Pacific failed after newly installed replacement steam generators leaked radiation. Majority plant owner Edison opted to permanently shutter the facility in 2013. The following year, state regulators approved a settlement deal allowing the utility to recover 70 percent of the $4.7 billion in premature closure costs from customers, as opposed to shareholders. Edison later disclosed its executives met privately with utility regulators at a luxury hotel, negotiating a framework for the deal eventually approved in 2014. Those backchannel communications between utility executives and regulators are under criminal investigation by the California Attorney General’s Office. The mediation effort agreed to by Edison and consumers aims to resolve a federal court case filed by the group Citizens Oversight shortly after regulators approved the settlement. As public criticism of the original settlement terms mounted, the Public Utilities Commission ordered the San Onofre record reopened. While the terms from 2014 remain in place, regulators ordered the two sides to begin new settlement talks this year and now the parties will go to mediation. Interestingly, earlier this month, arbitrators at the International Chamber of Commerce resolved an arbitration case between Edison and Mitsubishi Heavy Industries, which manufactured the equipment that led to the plant failure in 2012, awarding Edison a fraction of the damages the utility had sought. The Chamber also ordered Edison to pay $58 million in legal fees to Mitsubishi. The Japanese manufacturer is seeking to keep portions of the evidence submitted in the arbitration case confidential. The federal appeals court has ordered regular updates to the negotiations. See more reported here-- and a statement of mediation from the court here--

Monday, March 27, 2017


Who knew Hamilton was a fan of arbitration? Ron Chernow's best-seller Alexander Hamilton, upon which the new musical is based, chronicles drafting the Constitution, forming the first political parties, and Hamilton's early career as a lawyer achieving amicable settlements through Alternative Dispute Resolution. Apparently, Hamilton was reported to prefer arbitration over litigation. Chernow recounts matters that Hamilton resolved by arbitration, such as shipping disputes. As arbitration figures prominently in the area of consumer agreements, it seems relatively modern, but arbitration has deep roots in our country. Hamilton's busy legal practice made him New York's premier lawyer, with an elite clientele that included the State of New York. Chernow states Hamilton was not alone in his preference for arbitration, as many practitioners of that era preferred it to litigation. In the early years of our nation, arbitration reached a high level of utilization, particularly in commercial disputes, and that continued until a time when the ebb and flow of opinions once again pushed litigation to the forefront and created what was perceived as a judicial hostility toward arbitration-- particularly by allowing the revocation of agreements to arbitrate. The enactment of the Federal Arbitration Act in 1925 established arbitration agreements as valid, irrevocable and enforceable over the last century. Throughout this time, arbitration has been a pivotal part of our dispute resolution mechanisms. While arbitration is by no means a major thread in the overall fabric of Chernow's biography of Hamilton, the references to it are of importance and instructive to all ADR practitioners. The fundamental reasons for its heavy utilization at the time of our nation's formation continue today, particularly in the commercial context. In light of Hamilton's support for arbitration, it's ironic that his final controversy in life was resolved by a duel, a lethal form of dispute resolution says Professor Mazadoorian who analyzes this biography through an ADR lens more here--

Thursday, March 9, 2017

Can Trump U. Settlement Objector Opt Out?

This week, a Florida lawyer and former Trump University student who paid $19,000 in tuition after being upsold to a "Gold Elite" program objected to a proposed $25 million settlement that would end lawsuits against President Trump’s real estate investing education seminars. The proposed settlement is expected to pay around fifty cents on the dollar for what students initially paid to attend the now-defunct program. The class action deal resolved claims that Trump University falsely promised that Donald Trump himself had hand-picked the instructors and that the program was an “accredited university.” Most class action settlements allow individual class members to opt out of the deal just prior to final approval. The facts of this case, in which class members had an opportunity to opt out before the two sides reached a settlement, are particularly unusual. Typically classes are certified at the time of settlement, so class members receive notice of their opt-out rights at the same time they are informed of settlement terms. There’s surprisingly little precedent to guide the court on this issue. Because of the objection filed, San Diego U.S. District Judge Gonzalo Curiel could delay the settlement or even call the entire deal into question. The plaintiff seeking to opt out maintains that by not offering a formal opportunity to opt out, the settlement violates her due process rights and the Federal Rules of Civil Procedure. Plaintiff's counsel even agreed to waive its litigation fees and costs in order to assure the judge overseeing the case that the firm’s only interest was getting the best possible deal for Trump University students. See more here-- and and and

Sunday, February 26, 2017

Did Mediation Disrupt Law?

Mediation was once viewed with the same suspicion found in the present disruption of industries and professions. After all, it was boldly called Alternative Dispute Resolution (ADR). Over the past couple of decades in Florida, we have vastly reduced the number of disputes going to trial, such that less than two percent of cases actually go that way. Because of skilled mediators and the embrace of the process by the bench and counsel, parties are participating in less formal court proceedings, having been encouraged to engage in early resolution of disputes in a cost effective manner. Trial courts remain available for the minority of legal matters unable to be resolved through facilitated negotiation. ADR processes offer litigants court-connected opportunities to resolve their disputes without judicial intervention. In Florida, this has resulted in one of the most comprehensive court-connected mediation programs in the country. The Florida Dispute Resolution Center (DRC) was created during the mid-'80s to provide assistance to the courts in developing ADR programs and to conduct education and research on ADR in general. Legislation some thirty years ago resulted in Chapter 44, Florida Statutes, Mediation Alternatives to Judicial Action. This law granted civil trial judges the statutory authority to refer cases to mediation or arbitration, subject to rules and procedures established by the Supreme Court of Florida. The Supreme Court duly established minimum standards and procedures for qualifications, certification, professional conduct and training for mediators and arbitrators who are appointed pursuant to this chapter. Since then, the statute has been revised several times and procedural rules, certification qualifications, ethical standards and continuing education requirements for mediators have been implemented. Currently, rules requiring mediators of filed cases in circuit and family court to be certified are being debated and were recommended by the ADR Section of The Florida Bar as outlined in a recent post on this blog. The ADR Rules & Policy Committee of the Supreme Court of Florida will next consider and likely recommend such changes. See more here-- and and and

Wednesday, February 15, 2017

Water Wars: Special Master Finds Against Florida

Florida and Georgia tried the decades-long Water Wars case between them before a U.S. Supreme Court (SCOTUS) assigned Special Master late last year. A ruling in the form of a report and recommendation to SCOTUS, finding Florida did not meet its burden, has now been issued following the filing of post-trial briefs of each state. Florida sought 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 focused 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. Maine resident and Special Master, Ralph I. Lancaster, Jr., previously implored the states to settle out of court rather than live with a costly decision. Strangley, the states initially mediated the case with a mediator whose name was kept secret by an order. Except to hear progress reports, Master Lancaster wanted no part of the mediation process, but did command the parties to try a post-trial mediation. Florida still sought a cap on consumption that would alleviate past damage allegedly caused by Georgia. Despite the Special Master's efforts in getting the sides to meet in a good faith effort to reach a framework for settlement of this equitable apportionment proceeding, he was forced to issue a ruling. He even cited a precedent for controversies between states, quoting a 1942 case for the proposition that "The Supreme Court has 'often expressed' its 'preference' that, where possible, states settle their controversies by ‘mutual accommodation and agreement.’” Florida officials didn’t immediately comment, but the findings did appear to leave an opening to launch a separate legal complaint. The Special Master hinted throughout his Valentine's Day report to SCOTUS that Florida made a grievous tactical error by not including the U.S. Army Corps of Engineers as a party to the lawsuit. "Florida’s asserted harms are imaginary, self-inflicted, or inflicted by the operations of the United States Army Corps of Engineers... but in any event cannot be traced to Georgia’s water use." See article here-- and docket with report and recommendation to SCOTUS here--

Sunday, February 12, 2017

Law Schools TM Mediation

Competing law schools in Houston are going to mediation in a federal case in hopes of resolving a bitter trademark dispute over the new name of a 93-year-old law school. Interestingly, U.S. District Judge Keith Ellison of the Southern District of Texas set a judicial mediation before U.S. Magistrate Judge Dena Palermo at the end of the month. The University of Houston (UH) and South Texas College of Law Houston could not agree about withdrawing various trademark applications and registrations. They also could not agree about whether UH should be compensated for its expenses. The UH lawsuit claimed that South Texas had violated its trademark when it changed its name last year to Houston College of Law. The new branding, UH lawyers argued, confused prospective law students and even people voting on law school rankings, to the detriment of UH's law program. UH sought a temporary injunction, asking the judge to stop South Texas from using its new name while the case was being litigated. The injunction was granted because UH was likely to win the case before a jury in the court's view. Interestingly, the judge ordered South Texas to come up with a new name in the interim. South Texas officials decided to attach the word Houston to the end of the college's name rather than the beginning. UH apparently found this acceptable. The standard in trademark is always likelihood of confusion. Judge-directed mediation within federal district courts is sometimes seen around the country, though we don't find this in the Middle District of Florida, where private mediators are usually named in the Case Management Order (CMO) at the outset of a federal case. See story here--

Wednesday, February 8, 2017

NFL Concussion Settlement Registration Begins

Retired National Football League (NFL) players can now register for compensation under the league’s historic $1 billion settlement. Interestingly, a judicial status conference in which the enrollment was announced was held not in the courtroom, but in the National Constitution Center in Philadelphia. About 22,000 retirees are encouraged to get baseline neurological testing. The league expects more than 6,000 of them to eventually be diagnosed with dementia or Alzheimer's disease. Participants must register for the settlement by August 7th. The conference apparently began with opening remarks by U.S. District Judge Anita Brody, who presided over the settlement process. Brody was joined by lawyers for the players and the NFL. After stressing the registration deadline for all affected players is approaching soon, the league encouraged all class members to promptly register. The settlement provides payment for retired players diagnosed with amyotrophic lateral sclerosis, chronic traumatic encephalopathy (which is only diagnosed with an autopsy), Alzheimer’s disease, Parkinson’s disease and dementia. In addition to monetary compensation, the NFL has agreed to provide brain injury testing to players and provide payments to fund the education of concussion and sports-related brain injuries. No player will need to prove causation. The average award is expected to be about $190,000 for those suffering from Alzheimer's disease or moderate dementia. The awards do not cover depression or mood disorders. See full stories here-- and

Friday, January 27, 2017

FL Bar ADR Section Supports Mandatory Certification

Yesterday, the Executive Council of the ADR Section of The Florida Bar convened in Orlando at its winter meeting. Among the topics for discussion were proposed rules that will ultimately be considered by the ADR Rules & Policy Committee of The Supreme Court of Florida which asked for the section's input on the matter of mandatory certification for mediators in court cases. Two recommendations were made to ADR Rules & Policy that is likely to have its own language changes and submit for public comment before the Florida Supreme Court passes them. This effort was brought about after a survey of the ADR Section's members indicated the majority preferred using certified mediators and felt all people in Florida mediating cases for the courts should be required to follow the ethical rules. The rules address things like conflicts of interest, confidentiality, coercion, self-determination and other traditional hallmarks of the mediation process. The first proposal requires that professional standards would apply to non-certified mediators voluntarily selected or retained by the parties in the absence of a court order and applies to circuit and family cases. A second motion passed for requiring mandatory certification of mediators in filed cases retained or appointed by the court in the same divisions, with the exception of dependency. While these proposals are perhaps controversial in some circles, it was thought the ADR Rules & Policy Committee would act on this with or without the ADR Section's input. Therefore, the preference for rulemaking reflected by the section survey was formally expressed through these resolutions. Stay tuned for next steps. See court committee link here-- and section link here--

Sunday, January 15, 2017

Takata Deal Parties Ask for Special Master

Last week, the U.S. Attorney in Detroit announced Takata Corporation agreed to plead guilty to wire fraud and pay $1 billion in penalties stemming from the company’s fraudulent conduct related to sales of defective air bag inflators. The federal prosecutor said automotive suppliers who sell products that are supposed to protect consumers from injury or death must put safety ahead of profits. Under the terms of the agreement, which is subject to court approval, Takata pleaded guilty for falsifying testing data and reports that were provided to automakers. Takata will pay a criminal fine of $25 million and establish a $125 million restitution fund for individuals who suffered or will suffer personal injury caused by the malfunction of a Takata airbag inflator, and who have not already resolved their claims. In addition, Takata will establish an $850 million restitution fund for the benefit of automakers who received falsified testing data and reports or who have purchased airbag inflators from Takata containing phase-stabilized ammonium nitrate. The deal includes appointment of an independent monitor, who will report to the Justice Department and monitor Takata’s compliance with its legal and ethical obligations. The parties asked the federal judge to appoint mediator Kenneth Feinberg as a special master to distribute restitution payments. He handled restitution funds in the General Motors ignition switch and BP oil spill cases, among others. Payments to individuals must be made soon and automakers must be paid within five days of Takata's anticipated sale or merger. Takata is expected to be sold to another auto supplier or investor sometime this year. See more in stories here-- and and press release--

Monday, January 9, 2017

Post-Trial Mediation Ordered For Water Wars

Attorneys for Florida and Georgia tried the decades-long Water Wars case between them before a U.S. Supreme Court assigned Special Master late last year. A ruling was expected following the filing of post-trial briefs of each state. 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. Maine resident and Special Master, Ralph I. Lancaster, Jr., previously advised the states to settle out of court rather than live with a costly decision he has stressed neither will like. The states already mediated the case with a mediator whose name was strangely kept secret by an order. Except to hear progress reports, Master Lancaster wanted no part of the mediation process, but now has ordered the parties back to a post-trial mediation this month. Florida still seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. The Special master has encouraged the sides meet in a good faith effort to reach a framework for settlement of this equitable apportionment proceeding. He cites a precedent for controversies between states, quoting a 1942 case for the proposition that "The Supreme Court has 'often expressed' its 'preference' that, where possible, states settle their controversies by ‘mutual accommodation and agreement.’” Counsel for the states are to submit a confidential memorandum to him by January 26, 2017,“setting forth a summary of the parties’ settlement efforts.” See article here-- and docket with case management order here--

Wednesday, January 4, 2017

Nursing Home Arbitration Ban Postponed

Last fall, the Centers for Medicare and Medicaid Services (CMS), an agency under Health and Human Services (HHS), 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 was the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in decades. The nursing home industry maintains arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry says, could drive up costs and force some homes to close. This was the case in the early 2000s, 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. When CMS essentially barred any requiring residents to resolve any disputes in arbitration, federal courts were quick to issue injunctions in industry suits. Now CMS has issued a memo that it will not attempt to enforce the ban until the injunction is lifted. With the impending Trump Administration, it seems possible that the new CMS rule will die altogether. Congressional Republicans have vowed to roll back many regulations approved in the final months of the Obama Administration, such as this one. I do a fair amount of long-term care arbitrations, usually serving as the chair of a panel. These are difficult cases and are sometimes better suited to be resolved in private before knowledgeable and fair neutrals, rather than presented to juries. Arbitration of health care cases can be streamlined for counsel, saving the parties costs and often providing a quicker result than the courts. See more here-- and