Wednesday, November 29, 2017

Sexual Harassment Mediation

What a season it has been for sex in the workplace. Sexual harassment claims involve a complainant (an employee), the accused (usually an employee), and the employer (or company). Complainants normally seek to address being violated or abused in some way and need to feel normal again. Complainants want unwelcome behavior to stop, but often don't want to put their career in jeopardy by filing the complaint, and would rather continue doing his or her job as though nothing has happened. They also may want the employer to make up for past loss of a promotion due to the alleged harassment or even back pay. Mediation can help avoid further emotional trauma, including a public trial. Likewise, the accused may welcome maintaining confidentiality of the charges to the greatest extent possible, and to keep his or her job. The accused may even find exoneration possible. Finally, all employers want to avoid liability, while maintaining productivity and upholding company policies. Because mediation remains confidential, negative career repercussions are less likely to occur. With a resolution, a victim may resume his or her job with the company. The process also allows the victim to air frustrations and self-determine remedies that allow him or her to be made whole again. These remedies are often not available in traditional litigation and can include apologies and promises of help in attaining other employment. Similarly, employers can agree to reinstate a complainant or award an previously withheld promotion. Harassers can be transferred, fired, or reeducated. Mediation can meet the accused's objectives, as well, with an opportunity to clarify his or her side of the story. The confidentiality of the proceedings allows settling the situation without public disparagement. If the charge resulted from a misunderstanding, the miscommunication can be worked out without becoming more polarized. Mediation also allows the accused to make amends for the unintentional harm inflicted. Employers find disposing of these cases through mediation quicker and less expensive than litigation and the process provides less disruption of the work force. Finally, mediation promises less stress than litigation for all parties involved. See more here-- E. Whittenbury Vol. 43, Number 4, Business & Economic Review, Moore School of Business, University of South Carolina

Thursday, November 16, 2017

International Arbitration in Florida

The Supreme Court of Florida last week approved a Florida Bar board certification specialist (BCS) program for international litigators and arbitrators due to Florida increasingly becoming an international arbitration hub. In a decade-long effort by the International Law Section to create a board certification program, international litigators and arbitrators now have a novel certification helping to position particularly Miami as an attractive place for foreign companies to resolve their disputes. To meet the requirements for board certification, practitioners will have to have a significant amount of experience and will have to submit references of arbitrators, judges and opposing counsel. Practitioners also will need to show that they have completed a certain number of hours of continuing legal education in the particular area. Finally, practitioners will have to take a lengthy exam. Another rules decision now allows foreign attorneys to work as authorized in-house counsel for companies in the state. Previously, only American attorneys could be in-house counsel, but companies often have foreign lawyers in-house if they are doing lots of foreign business. Reportedly, those attorneys would have run the risk of being subject to Florida Bar prosecutions for practicing law without a license. Communications between these in-house foreign attorneys and their companies in the event of litigation are also protected under the change when opposing counsel seek such communications, enabling businesses to hire the people they desire to advise them. As a sidebar, I recently attended our annual retreat of the Executive Council of our Florida Bar ADR Section where we discussed board certification for arbitrators and mediators by the bar for civil cases in the state. It was decided the section would discontinue pursuing such a specialization certification from the state bar in these forms of ADR, as it does not actually constitute the practice of law. Regardless, there are already a non-BCS certification for mediators and a qualification for domestic arbitrators by The Supreme Court of Florida. That court will soon decide if court connected cases require certified mediators be assigned. Stay tuned! See full news story here-- and Supreme Court of Florida case In re: Amendments to the Rules Regulating the Florida Bar (Biennial Petition) SC16-1961 here--

Sunday, November 5, 2017

MEAC's Latest on Reporting Settlements

Florida's Mediator Ethics Advisory Council (MEAC) recently considered an inquiry on reporting partial settlements. A mediator writes in that the inability to differentiate between a final and partial agreement on the face of the report as permitted by the mediation procedural rules has created an ethical dilemma in the need to report to the court the actual outcome of the mediation and the status of the case. The practitioner complains it is not only misleading to the court to report only "agreement" or "no agreement," it is also time consuming for the judges, judicial assistants or case managers to read every agreement to determine if it is final or partial agreement as opposed to being able to look at the report. MEAC found that in civil and family law cases only, with the consent of the parties, the mediator's report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. To report anything additional without agreement of the parties, or add descriptors or modifiers to "agreement," "no agreement," or "partial agreement," would be providing information to the court, an action which is prohibited by the Mediation Confidentiality and Privilege Act, Sections 44.401-405, Florida Statutes. They did say, however, the rules do not restrict the parties from including in the written agreement their consent to the inclusion of additional language, descriptors, or modifiers in the mediator's report. See full advisory opinion here--