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