D.C. Needs a Mediator!

With a government shutdown of undetermined length facing our nation, Washington, D.C. needs a mediator. As a former congressional staffer on Capitol Hill, I've seen this play many times. The parties and the president have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, an effective mediator is necessary. As the late negotiation guru Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. With a different Congress in 2019, things are sure to become even more complicated. Happy New Year!

ADR Section Meeting Next Month in Orlando

The Florida Bar Alternative Dispute Resolution (ADR) Section mid-year meeting occurs January 17, 2019 in Orlando. Our Executive Council will be meeting in-person and all section members are invited to attend, as always. If members of the section have something specific to put on that agenda, please contact Stefanie Svisco, our Florida Bar Program Administrator in Tallahassee. At that time, our section also will be joining with The Florida Bar to produce a training program for mediating and arbitrating attorney grievances. Neutrals are always needed for this process so if you have a desire to get involved, come live to the training or find it online after the meeting and get involved in helping The Florida Bar address these situations. Another project underway next year is a request from the Florida Supreme Court’s Rules & Policy Committee for input from our section members on Mediator Ethics Advisory Committee (MEAC) opinions as well as the Ethical Rules for Certified and Court-Appointed Mediators. This is your opportunity to let the Rules & Policy Committee know which MEAC opinions should be reviewed and potentially revised. The rules form the foundation for MEAC opinions and analysis. Are there areas where the rules should be amended or clarified? The process of amending or making new rules in Florida requires advocates contact the relevant rules committee with suggestions for rule changes based on outcomes and decisions that the participants believe highlight areas of confusion or unintended consequences. Please take this opportunity to let us know. We will capture the comments on our website and submit them to the ADR Rules & Policy Committee as they begin the process of considering upcoming rule changes. We will begin accepting your submissions on the rules starting on February 1, 2019 with a cut-off of March 31, 2019. You will receive a separate email with the details for the submission after January 1, 2019. See more here-- https://bit.ly/2R81ECk

ADR Rules & Policy Proposal

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy recently submitted to the Florida Supreme Court an amended petition proposing amendments of the Rules for Qualified and Court-Appointed Parenting Coordinators. The Committee proposes amending rule 15.210 and adding new rules 15.220 through 15.370 to codify in the rules new procedures for parenting coordinators. The Court invited all interested persons to comment on the proposed amendments via the Committee Chair, former Upchurch Watson White & Max Mediation Group Mediator, Honorable Michael S. Orfinger, Volusia County Courthouse Annex in Daytona Beach or morfinger@circuit7.org, and on support staff to the Committee, Juan R. Collins, Dispute Resolution Center, Florida Supreme Court Building in Tallahassee or collinsj@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has yet to file responses to any comments filed with the Court. The Supreme Court Committee on ADR Rules and Policy was created in 2003 as a successor joint committee of previously separate rules and policy committees. The committee provides the Supreme Court with recommendations relating to: all aspects of ADR policy and rules, legislation, model ADR practices, mediator certification and renewal requirements including continuing mediator education, and mediation training program standards and requirements. See more here-- https://bit.ly/2Ee9TWy and https://bit.ly/2Bf2jI2

TRO issued in Jay-Z AAA Arbitration

An injunction was issued this week by a New York judge in favor of Jay-Z on the grounds that the lack of African-American arbitrators provided by the American Arbitration Association (AAA) impeded his right to equal opportunity under the law. Judge Saliann Scarpulla issued a temporary restraining order, pushing arbitration back to next month at the earliest. The dispute involves Iconix, which acquired Rocawear in 2007, and sued the rapper last year for allegedly breaching their 2007 contract by using the Roc Nation logo on a new line of baseball caps. A countersuit argues that the contract applied only to Rocawear and not Roc Nation, at which point both parties entered AAA arbitration. Jay-Z claims AAA found only three potential African-American arbitrators, out of the hundreds it uses, for his case, and one already represented Iconix in related litigation. To begin the process, the AAA typically provides parties with a list of potential arbitrators from which they must eliminate names until they arrive at one. Reportedly, Jay-Z maintains that white arbitrators exhibit “unconscious bias” towards black defendants, and that the AAA’s lack of racial diversity consequently “deprives litigants of colour of a meaningful opportunity to have their claims heard by a panel of arbitrators reflecting their backgrounds and life experience.” His lawyers claim arbitration procedures in place by the AAA “deprive black litigants...of the equal protection of the laws, equal access to public accommodations, and mislead consumers into believing that they will receive a fair and impartial adjudication.” Although the ruling may not stop the proceeding altogether, it could set an important precedent for addressing diversity in neutral selection. See full news stories here-- https://bit.ly/2RpXHpr and https://nbcnews.to/2KIkQkm

Tomorrow in Orlando: Closing the Gap

Join me tomorrow at the Orange County Bar Association as I moderate a seasoned panel on strategies to bridge gaps causing impasses. I will present panel members with complex fact patterns and describe the specific situations in which the negotiations have stalled and then ask what techniques they would utilize to move the negotiations forward. This will be an engaging program and will feature some of our firm's best mediators. The attendee list is an impressive one as well, with many veteran trial lawyers and even a few mediators, as well as a United States Magistrate Judge from the Middle District of Florida. This program is eligible for 1.5 hours of CLE credit from The Florida Bar. We also plan to meet afterwards in Downtown's North Quarter for an ADR Committee reception at Reyes, just across the street on Orange Avenue. Please come in the event you cannot make the afternoon seminar!

Special Master Orders Briefs in Water Wars

This week, the U.S. Supreme Court-appointed Special Master of the so-called Water Wars, Honorable Paul J. Kelly, Jr., set a January 31, 2019 deadline for initial briefs and a February 28, 2019 deadline for reply briefs. Judge Kelly denied Florida’s request for additional evidence-gathering in the case before he will make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia. He found additional discovery would only lengthen the proceedings, delay the outcome and increase litigation costs, citing a voluminous record in the case from unlimited discovery and lengthy prior trial. Florida still seeks the cap on consumption that would alleviate past damage allegedly caused by Georgia. Future proceedings will weigh Georgia’s claims that any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry in southwestern Georgia. This blog has followed the Water Wars for years in other entries. Florida ultimately 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. See more here-- https://bit.ly/2JSm4cj and here-- https://bit.ly/2FcOGP6

More Arbitration Argument Before SCOTUS

Today, the U.S. Supreme Court (SCOTUS) has oral arguments in two arbitration cases. In the first matter, Henry Schein, Inc. v. Archer & White Sales, Inc., the justices consider if a judge or an arbitrator should decide if a particular dispute should be resolved in arbitration rather than in court. In the second case, Lamps Plus Inc. v. Varela, the issue is whether the Federal Arbitration Act (FAA) precludes state law interpretation of arbitration contracts allowing for class arbitration and who decides whether a particular dispute should be decided in arbitration rather than a court. SCOTUS has already recognized that arbitrators decide issues of arbitrability if the parties clearly and unmistakably agree the arbitrator can assess whether any particular dispute is sufficiently related to the contract to warrant arbitration. Apparently, the U.S. Court of Appeals for the 5th Circuit will not send a case to the arbitrator decide the question of arbitrability, even if the parties have agreed that the arbitrator should decide such questions, if the court finds the claim of arbitrability wholly groundless. The contract in the first case mentioned above provided for arbitration of any dispute arising under or related to the contract, except for actions seeking injunctive relief. The complaint sought damages for Sherman Act violations, as well as injunctive relief. The defendants sought arbitration, arguing the thrust of the complaint was to seek damages, and that injunctive relief could issue after the arbitrator ruled on the merits. Lower courts refused to send the matter to arbitration, finding the request for arbitration groundless because of the inclusion in the complaint of a count for injunctive relief. Because SCOTUS already decided parties can delegate issues of arbitrability to an arbitrator in precedents that do not include exceptions for cases in which courts regard the request for arbitration as groundless, a reversal is likely given recent trends in favor of arbitration. The second case hinges on whether the U.S. Court of Appeals for the 9th Circuit correctly held that an employer did consent to class arbitration when it included language in the arbitration contract that committed the parties to use arbitration in lieu of any and all lawsuits or other civil legal proceedings. This case too may find itself going back, but on procedural grounds as the FAA dictates that an appeal may not be taken from an interlocutory order directing arbitration to proceed. See more here-- https://bit.ly/2AzcN6e and https://bit.ly/2JodgdX and https://bit.ly/2w5K2O8

SCOTUS Kicks Arbitration Case

This month, the U.S. Supreme Court kicked a Kindred Healthcare arbitration case, declining to review the case for a second time. Last year, the High Court sided with Kindred in Kindred Nursing Ctrs. LP v. Clark, which related to whether an arbitration agreement signed by a Power Of Attorney (POA) is enforceable if not granted explicit permission to sign such a document in the POA. Kindred petitioned for certiorari this time arguing the Kentucky Supreme Court failed to adhere to the decision in its favor. The long term care provider asserted the state refused to honor the Justices’ interpretation of the Federal Arbitration Act (FAA). The state court declined to honor the arbitration agreement signed by power of attorney, without the nursing home resident giving express authority to sign away the right to a trial. The nursing home relied on two provisions in the power of attorney, one giving power to demand or collect money and institute legal proceedings, and another giving the power to make contracts “in relation to both real and personal property.” The court found that the arbitration agreement “was not the enforcement…of something then due or to become due” “nor was it the making of a contract…pertaining to” property. As a result, “that aspect of the Extendicare decision remains undisturbed.” The case rejected by the Supreme Court was one of three others consolidated under Clark, and was bounced back to Kentucky. Interestingly, the Kentucky high court just became the first state to find employers may not require employees to sign arbitration agreements as a condition of their employment, indicating a hostility toward FAA preemption and the arbitration process that may bleed over into this area of law as well. See more here-- https://bit.ly/2S2Wzsx and https://bit.ly/2R28ju1

SCOTUS of Just 8 Consider Arbitrability

This week, a U.S. Supreme Court of just eight justices will hear New Prime Inc. v. Oliveira including the matter of whether a dispute over applicability of the Federal Arbitration Act's (FAA) Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause. Importantly, this case may resolve whether such applicability of the FAA is a question for the arbitrator or the judge. Several of the Supreme Court’s recent cases suggest that an arbitrator’s authority includes not only resolving of the dispute, but also determining the extent to which any particular dispute falls within our authority as arbitrators. Interestingly, retired Justice Kennedy was one of five justices commonly in the majority when arbitration cases were decided by a 5-4 vote. An even panel of justices must now decide how activity in this case, which involves an exception from the FAA for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce," will be determined. The underlying facts concern individuals who drive the trucks carrying goods consigned to trucking companies documenting drivers as independent contractors rather than employees. For example, if that exception does not apply, then long-haul truck drivers are back in the conventional domain of the FAA. The actual text of the FAA, however, does not exempt all transportation “employees.” Rather, it exempts “contracts of employment” of transportation employees. Oral argument is scheduled October 3rd. See more here-- https://bit.ly/2OZyZec and https://bit.ly/2HVjWiB and https://bit.ly/2OteZDM

Mediation Law Changes Coming to Cali

Interestingly, a new California law that will take effect next year requires mediation participants to essentially sign an informed consent. Revised Evidence Code section 1129 will require a lawyer to make sure their client understands the implications of California's legal protections for mediation communications, before the client agrees to mediate. If the client has already agreed to mediation before seeking counsel, say by signing a contract with a mediation clause, consultation will be still required as soon as possible after engaging counsel. A Mediation Disclosure Notification and Acknowledgment is to be signed essentially outlining that communications, negotiations, or settlement offers in the course of a mediation must remain confidential. The ADR Section of The Florida Bar was recently considering the outstanding issue (currently in the hands of the ADR Rules & Policy Committee of The Supreme Court of Florida) of mediators possibly being required to be certified to mediate court connected cases in Florida. In that discussion, those advocating against are confusing self-determination in choosing a mediator with self-determination of the actual outcome of a settlement. During this debate, we wondered aloud whether such conversations regarding the process take place often enough with counsel in the detail required here, or whether the elements of an opening found in our certified mediator rules suffice. The new law smartly includes language that mediator’s report, opinion, recommendation, or finding about what occurred in a mediation may not be submitted to or considered by a court or another adjudicative body. This would alleviate a problem, though infrequent, of subpoenaing mediators to court in enforcement actions which certainly compromises our neutrality and mostly results in our being excused from such proceedings. See full article from Mediate.com here-- https://bit.ly/2QYWh5v and amended statutory language here-- https://bit.ly/2p4ozPq

Half of Uber MDL to Arbitrate

A federal judge tossed half of the lawsuits concerning Uber's data breach after finding claimants were aware they signed arbitration agreements upon registering to use the app. Uber sought to compel arbitration in consumer class actions filed over the breach, which compromised the personal information of 57 million drivers and riders. This month, the presiding U.S. District Judge, Philip Gutierrez of California, granted such motions in separate orders in seven cases while seven other cases remain. The trial court relied on the U.S. Court of Appeal for the Second Circuit’s decision last year in Meyer v. Uber, finding a “reasonable user” of a smartphone would understand the process of agreeing to Uber’s terms of service. Of course, plaintiffs disagree with that holding and its reasoning. The judge wants further hearings to address whether there is going to be an MDL after this whole process of weeding out arbitrable cases is over with, or not. He noted, however, that all the cases are nationwide class actions that could go forward as a consolidated complaint, but that plaintiffs' lawyers are debating who should lead that action. Uber announced hackers breached its app in 2016 and also admitted paying them $100,000 to destroy the information in 2017. Last spring, the U.S. Judicial Panel on Multidistrict Litigation sent the class actions to this judge, whose first action was to decide Uber’s arbitration motions. Plaintiffs lawyers argued that data breaches fell outside the scope of Uber’s agreement. The current judge was not persuaded and instead found that an arbitrator must decide that issue. He cited the U.S. Court of Appeals for the Ninth Circuit’s 2016 decision in Mohammed v. Uber, which had a “nearly identical Uber delegation provision.” Plaintiffs also cited this summer's decision by the U.S. Court of Appeals for the First Circuit in Cullinane v. Uber and U.S. District Judge Richard Seeborg’s decision last year in Metter v. Uber, both finding Uber’s arbitration agreement unconscionable because a pop-up keyboard obscured text. But Judge Gutierrez found those cases, unlike the Second Circuit’s Meyer case, involved different devices or different versions of Uber’s app, stating he agreed with defendants "that the Cullinane decision departs dramatically both from what other courts have found regarding Uber’s registration process, and from the overall legal landscape regarding assent to online agreements." The court found rather that "Clickable buttons come in all shapes and sizes.” It is clear there is a split of authority in these cases likely to continue affecting arbitrability. See full story here-- https://bit.ly/2NqLmDK

Arbitrator to Decide Trump Campaign Staffer Claim

Earlier this month, a New York Supreme Court judge decided a former campaign staffer‘s lawsuit regarding harassment could not be moved to private arbitration because her NDA didn’t specify that. Rather, it was merely an option and contained nothing about her job responsibilities, terms of her employment, salary, benefits, or her ability to pursue her own claim. Per the ruling, the state court observed the arbitration clause confined arbitration to "any dispute arising under or relating to this agreement." The state judge also decided it did not require arbitration for any "dispute between the parties" or even "any dispute arising out of plaintiff’s employment." In fact, the court did recognize an arbitrator's province in determining arbitrability, but said is was not even close call and was so clear on this specific, narrow clause as to be a question for the courts alone. Now, however, an arbitrator should have the first stab at deciding over the validity of an arbitration agreement according to a U.S. District in the Southern District of New York who ruled yesterday in a decision that appears to run counter to the state case. The new federal decision is reportedly in accordance with the prior state ruling, as it suggests that each turned on different wording of the separate complaints filed in the respective courts. The latest federal decision is certain to be presented as strong support for the appeal Trump’s legal team plans to file at the state court level. The employee sought to have the arbitration agreement declared unenforceable, saying it had been “weaponized” against her by the campaign. In his opinion and order, the federal judge said the terms of the NDA agreement she signed demands that her very argument about the agreement’s unenforceability must be determined by an arbitrator. The language of the arbitration states that any dispute "arising under or relating to" the agreement was subjected to the rules for commercial arbitration of the American Arbitration Association. Those rules state that the arbitrator has the power to rule on issues of his or her own jurisdiction, including the validity of the agreement itself. Interestingly, in noting the prior ruling at the state level, and specifically that the federal court was in no way bound by it, the judge quoted the state court critique of the language of the agreement failing to require any claims needing to be sent to arbitration, rather than any dispute under or related to the agreement. "Instead, the clause is much narrower: it allows defendant to choose whether to arbitrate any dispute that arises out of the agreement." In this, the federal judge found the claimant raised a "dispute that arises out of the agreement" --whether the agreement is enforceable, and further finding it follows that,"even on the state-court’s view of the arbitration clause, this dispute falls with the clause’s scope." As such, the federal case was dismissed, with neither party requesting to stay the case pending arbitration. See full story here-- https://bit.ly/2PTAHPh

State Judge: Arbitration not required by Trump NDA

Last week, former White House official Omarosa Manigault Newman made the rounds on national news shows about her new book and her firing which raised the question of whether she violated a signed a non-disclosure agreement (NDA) regarding her time in the Trump Administration. Meanwhile, an order in a New York lawsuit brought by another staffer during the campaign points to how Trump's future motion to compel arbitration claims may be decided. A state judge ruled Friday that another former campaign staffer‘s lawsuit regarding harassment could not be moved to private arbitration because her NDA didn’t specify that. Rather, it was merely an option and contained nothing about her job responsibilities, terms of her employment, salary, benefits, or her ability to pursue her own claim. Per the ruling, the court observed the arbitration clause confined arbitration to "any dispute arising under or relating to this agreement." The judge also decided it did not require arbitration for "any dispute between the parties" or even "any dispute arising out of plaintiff’s employment." Interestingly, the court did recognize an arbitrator's province in determining arbitrability, but said is was not even close call and was so clear on this specific, narrow clause as to be a question for the courts alone. Reportedly, Manigault Newman claims President Donald Trump is trying to silence her after his campaign filed an arbitration, claiming she violated her own non-disclosure agreement. See full news stories here-- https://bit.ly/2wgkYAT and https://usat.ly/2Bf3Cdu and court order here-- https://bit.ly/2Mna1IC

SCOTUS Subs Special Master in Water Wars

This week, the U.S. Supreme Court suddenly substituted a court-appointed Special Master after recently rejecting his ruling recommending Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit Florida water systems and remanding because he “applied too strict a standard” in rejecting Florida’s claim. The rejected recommended ruling in the decades-long Water Wars case favored Georgia and was just sent back to Special Master, Ralph I. Lancaster, Jr., of Maine who presided over and tried the original jurisdiction case back in 2016. Now, the Court has discharged him, swapping for Special Master Honorable Paul J. Kelly, Jr., a Senior Judge on the U.S. Court of Appeals for the Tenth Circuit from New Mexico, to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia. Florida still seeks the cap on consumption that would alleviate past damage allegedly caused by Georgia. Traditionally, states as parties pay legal fees of lawyers acting as special masters, though reportedly the high court foots the bill for some administrative and clerical costs. According to the court’s docket, the 88-year-old Lancaster was paid almost a half-million dollars between 2014 and 2017. By contrast, senior judges who become special masters are on the government payroll, relieving the states of having to pay special masters’ fees. Future proceedings will weigh Georgia’s claims that any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry in southwestern Georgia. This blog has followed the Water Wars for years in other entries. Florida ultimately 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. See news story here-- https://bit.ly/2vBQeKZ and SCOTUS Order here-- https://bit.ly/2B6Q9nI

New WIPO ADR Guide for IP Cases

The Arbitration and Mediation Center (AMC) of WIPO, the World Intellectual Property Organization, just released an updated guide providing an overview of Alternative Dispute Resolution (ADR) processes for intellectual property disputes. Since intellectual property portfolios became an essential part of business value, businesses started looking at more efficient methods to settle disputes than litigation. WIPO's AMC was created almost 25 years ago, recognizing a growing ADR trend where international parties informally gathered to settle disputes without litigation. The new WIPO guide is designed to provide an overview of ADR processes without purporting in any way to be authoritative or prescriptive. Chapter One of the guide offers background information concerning the early use and rise of ADR around the world, followed in Chapter Two by a description of potential advantages of ADR for intellectual property disputes. Chapter Three explains in more detail the different ADR procedures that may be used in intellectual property disputes, while Chapter Four outlines some practical considerations that may be relevant for IPOs and courts that wish to institutionalize such ADR procedures. For the substantive and procedural implementation of such procedures, the guide identifies as a core element the interface with existing regulations. The guide reminds litigants that ADR processes can deliver outcomes that provide a certain and conclusive resolution to disputes. This finality is a clear advantage for ADR, as the complexities of intellectual property litigation can make outcomes uncertain. Legal judgments can be overturned on appeal and jurors that often lack technical expertise may make incorrect decisions. See more here-- https://bit.ly/2vpuocT

No More Business Court? Use a Special Magistrate!

This month in Orange County, we saw the demise of the state's first "Business Court" due to lack of adequate funding from the state legislature which allocates less than one percent of Florida's budget to the judiciary. Known as the Complex Business Litigation Division of Circuit-Civil, this specialized court helped determine thousands of cases in its 15 year history through the use of its own rules and active case management by its presiding judges. Mediators with commercial experience also helped dispose of many a case upon referral. Now that these cases have been reassigned to the General Civil Division, they will likely have to wait to be decided among thousands more general cases already on those dockets. Ninth Judicial Circuit Chief Judge Fred Lauten spoke on this at our recent Orange County Bar Association Judicial Relations Committee meeting and is in the midst of a public relations campaign to encourage citizens to ask their elected officials to secure more funding next session. Judge Lauten has commented that "with a growing population and a base constituency of 1.7 million people, the Ninth Judicial Circuit has been operating at maximum effort with minimum resources for years. Despite a caseload that has qualified the circuit for additional judges every year since 2006, no new judgeships have been allocated. While an ever expanding workload coupled with chronically insufficient resources would spell a reduction in services for most agencies and businesses-- the judiciary is not afforded that option, nor should it be." As such, the business judges were moved to the fill a bigger need in the growing Family Division. Still, there remains an option to litigants to have their cases heard before a skilled neutral or Special Magistrate, by consent. Special Magistrates in state court (formerly known as Special Masters which they are still called in federal court) can timely assist burdened trial judges in the disposition of complex cases. Carefully drafted orders of referral under Rule 1.490 of the Florida Rules of Civil Procedure that anticipate the scope of issues to be decided, such as discovery disputes, can do much to make the utilization of Special Magistrates effective and cost-efficient. Having served the Circuit-Civil Division in culling cases during 2013 as a General Magistrate, I recently offered to serve as a hired Special Magistrate where parties so desire. See more in newspaper opinion piece here-- https://bit.ly/2mykykR

HOA Presuit Mediation in FLA

Yesterday, I had the pleasure of negotiating a resolution to a beachfront homeowner's association (HOA) dispute in presuit mediation. Because this process is statutory, I thought it a good idea to remind everyone of the contents of Section 720.311, Florida Statutes. A mediator is authorized to conduct mediation or arbitration under this section only if he or she has been certified as a circuit court civil mediator by the Florida Supreme Court. The Florida Legislature, finding that alternative dispute resolution reduces court dockets and trials and offers a more efficient, cost-effective option to litigation, created this mechanism for HOAs. Importantly, the filing of any petition or the serving of a demand for presuit mediation as provided for in this section tolls the applicable statute of limitations. Note that neither election disputes nor recall disputes are eligible for presuit mediation, as those are arbitrated under another process. Disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association are subject to a of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court. Presuit mediation proceedings must be conducted in accordance with the applicable Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court-ordered mediation under Chapter 44, Florida Statutes. Disputes subject to presuit mediation under Chapter 720 do not include the collection of any assessment, fine, or other financial obligation, including attorney’s fees and costs, claimed to be due or any action to enforce a prior mediation settlement agreement between the parties. Also, in any dispute subject to presuit mediation under this section where emergency relief is required, a motion for temporary injunctive relief may be filed with the court without first complying with the presuit mediation requirements of this section. After any issues regarding emergency or temporary relief are resolved, a court may either refer the parties to a mediation program administered by the courts or require mediation under this section. An arbitrator or judge may not consider any information or evidence arising from the presuit mediation proceeding except in a proceeding to impose sanctions for failure to attend a presuit mediation session or to enforce a mediated settlement agreement. Persons who are not parties to the dispute may not attend the presuit mediation conference without the consent of all parties, except for counsel for the parties and a corporate representative designated by the association. The statute also provides approved forms for use in the demand and response. See complete statutory language here-- https://bit.ly/2FXkhj1

Finding for FL, SCOTUS Sends Water Wars back to Special Master

This week, the U.S. Supreme Court found in favor of Florida in a 5-4 decision written by Justice Breyer on exceptions filed to a 2017 recommendation by a court-appointed Special Master ruling Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit Florida water systems, including oyster-rich Apalachicola Bay and had “applied too strict a standard” in rejecting Florida’s claim. The rejected recommended ruling in the decades-long "Water Wars" case favored Georgia and must now go back to Special Master, Ralph I. Lancaster, Jr., oddly enough a Maine lawyer appointed by the Supreme Court to oversee a claim Florida filed in 2013, on remand. 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. Attorneys for Florida and Georgia appeared for oral argument earlier this year in this original jurisdiction case previously tried before the Special Master back in 2016. The Court reserved judgment as to the ultimate disposition of this case, addressing here only the narrow “threshold” question of whether an “equity-based cap” on Georgia’s water consumption in the Apalachicola-Chattahoochee-Flint system would increase the water flow into the Apalachicola River and whether the amount of that extra water would “significantly redress the economic and ecological harm that Florida has suffered." The Special Master could also make further findings that Florida suffered harm from the overconsumption of water by Georgia. Florida still seeks the cap on consumption that would alleviate past damage allegedly caused by Georgia. Future proceedings will weigh Georgia’s claims that any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry in southwestern Georgia. Florida ultimately 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. See story here-- https://bit.ly/2Najjo5 and opinion here-- https://bit.ly/2yJVrod

Join me next month for Arbitration Backlash

The Cardozo Legal Society has invited me to speak next month at its breakfast meeting in downtown Orlando at the law firm of BakerHostetler. This one-hour general credit CLE will take place July 12th at 8:00 am in the SunTrust Center located at 200 South Orange Avenue. The U.S. Supreme Court just issued another decision upholding contracts to arbitrate rather than litigate disputes. Arbitration, however, continues to be attacked by media and elected officials despite being an effective ADR method to resolve disputes and control the rising cost of trying lawsuits. Federal law supports and governs the practice through the Federal Arbitration Act. To be enforceable, a clause must provide a meaningful opportunity for redress, and courts review contractual provisions for fundamental fairness. Because the litigation system has become so expensive, arbitration is often the preferred forum for disputes involving amounts in controversy for which litigation of claims is uneconomical. My talk explores the recent backlash against arbitration and reminds attendees of the origins and benefits of this dispute resolution process. The content is designed for lawyers who represent clients in arbitration and for attorneys who use arbitration clauses in contracts. I am a past chair of Cardozo Legal Society and former executive board member of our local non-profit federation, JFGO. Cardozo is a Business & Professional Society that offers attorneys, judges, law students and professors, and those in related roles in the legal profession an opportunity to get involved with the community while creating long lasting relationships with colleagues. See registration link here-- https://bit.ly/2KnWHlt

How to Become a Mediator

Though a forthcoming rules amendment case in The Supreme Court of Florida will likely be decided this year concerning whether certification is required of all mediators in court-filed cases in civil and family courts, certified mediators are currently the only ones subject to ethical rules and other regulations. In order to become certified as a mediator in Florida, there are stringent criteria and training required which is outlined in the link below. I am often asked about this and so the complete information can be found in this convenient publication of the Florida Dispute Resolution Center (DRC). When I became certified in 2001, you had to be a lawyer for five years, just like a judge. Observing mediations is still required and I fulfill my obligation to the profession by providing these opportunities. For each observation required for certification, a trainee must observe an entire session of the type of mediation for which certification is sought, conducted by a certified mediator of the type for which certification is sought. We fill out a form for the observer with the case style, our signature and mediator number. The observation requirement can't be satisfied by any individual who is a party, participant, or representative in the mediation. Candidates for certification may not fulfill the observations before beginning a certified mediation training program. As I'm often asked about whether appellate or pre-suit mediations count, if the case is that which is or would have been the type of mediation for which certification is sought, it may be utilized for observation purposes. Likewise, a federal court mediation conducted by a certified circuit mediator may be utilized to fulfill a circuit mentorship, even though our federal district has its own certification. However, administrative agency mediations conducted under rules and procedures other than that of the state trial courts may not be utilized to fulfill the mentorship requirements. See DRC publication detailing certification process here-- https://bit.ly/2JR4vsi and a link to DRC's annual conference next month in Orlando,"Promoting Mediator Professionalism," here-- https://bit.ly/2tfuJxA

SCOTUS Upholds Employer Arbitration Requirement

This month, in a 5-4 decision, the U.S. Supreme Court ruled that an employer can lawfully require employees to arbitrate as a condition of employment any related disputes on an individual basis and to waive their right to participate in a class action suit or class arbitration. The case involved an effort by workers to file a class action suit against an employer for violating the federal minimum wage law. The employer sought to dismiss the case because it insisted as a condition of employment that the employees waive their ability to go to court or be part of any class action. Rather, any dispute had to be resolved out of court in a private arbitration. The case, Epic Systems v. Lewis, arose from the U.S. Court of Appeals for the Seventh Circuit. Companion cases, Ernst & Young v. Morris, from the Ninth Circuit and National Labor Relations Board v. Murphy Oil, from the Fifth Circuit were argued as a trio before the Supreme Court which decided they differed only in detail, not substance. The Federal Arbitration Act (FAA) requires courts to enforce arbitration agreements between employers and employees according to their terms, even when the agreements provide only for arbitration through “individualized proceedings” rather than a class. In this holding, the Court refused to read the National Labor Relations Act (NLRA) to prohibit arbitration agreements requiring individualized arbitration as an impermissible restriction on employee rights under the NLRA to “engage in … concerted activities for the purpose of … mutual aid or protection,” 29 U.S.C. § 157, holding that Section 7 of the act “focuses on the right to organize unions and bargain collectively” and “does not even hint at a wish to displace" the FAA. The Court stated the FAA and the NLRA have long coexisted (since 1925 and 1935 respectively) and found the suggestion they might conflict something quite new. The Court reasoned that the employees’ theory ran “afoul of the usual rule that Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions..." See more in article here-- https://bit.ly/2Jk3e04 and read full opinion here-- https://bit.ly/2rWzAE8

Join us next month in Orlando!

Next month, at The Florida Bar Annual Convention in Orlando, our Alternative Dispute Resolution (ADR) Section Executive Council (EC) will hold its annual meeting at the Hilton Bonnet Creek and an ADR CLE/CME Program: Inside the Mediator’s Mind. The June 14th CLE/CME will occur at 1:00pm, followed by a reception to take place from 4:30-6:30pm. The ADR EC meeting is set for June 15th at 9:00am. The ADR Section plans to continue advancing new programs and opportunities for continued growth and participation in the section. The ADR Section was established in 2010 to provide a forum for lawyers interested in alternative dispute resolution and to provide for discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. The ADR Section keeps members informed and updated regarding legislation, rules, and policies in connection with mediation and other ADR processes and the responsibilities they impose on mediator and arbitrator members, as well as provide quality continuing legal education programs. Additionally, ADR Section committees are open to members to plan and execute section activities, events, and programs to benefit section members. More information can be found at ADR section website, www.fladr.org. Our goal is to make the ADR Section more accessible to all Florida Bar members, engaging them through information on available on the website, such as links to MEAC opinions, and by our social media posts on Facebook and Twitter (@FlaBarADR). In addition, each issue of the section’s "News & Tips" publication can be viewed from the website. See the Bar's Annual Convention page for a full schedule of events here-- https://bit.ly/2G2J98F and https://bit.ly/2wDFzmf Join our ADR Section by applying here-- https://bit.ly/2wLlIRQ or click to add it when paying your Florida Bar dues renewal-- https://bit.ly/2k0fTXT

Deepwater Arbitrator Not Biased

The English Court of Appeal ruled that an arbitrator chairing an insurance case arising from the Deepwater Horizon oil rig explosion in the Gulf of Mexico ought to have disclosed involvement in overlapping cases, but said failure to do so did not make him biased. In a dispute following the Deepwater Horizon incident which caused extensive environmental damage along the Gulf Coast, numerous claims were made against BP, as well as Transocean and Halliburton, both of which had liability insurance from Chubb. After settling with claimants, both companies made claims under their insurance policies which Chubb rejected on the basis that the settlements were unreasonable. Halliburton commenced arbitration proceedings against Chubb and each party appointed an arbitrator. The parties could not agree on the identity of the third arbitrator who was then court-appointed to chair the tribunal. The chair disclosed that he was already in two unrelated insurance cases to which Chubb was party. Transocean later also commenced arbitration against Chubb. Chubb named the chair arbitrator in the Halliburton case as its party-appointed arbitrator. Prior to accepting this appointment, it was disclosed to Transocean that the same arbitrator was appointed chair in the Halliburton case and in the other Chubb arbitrations which had been disclosed to Halliburton. However, the arbitrator failed to disclose to Halliburton his proposed appointment in the Transocean dispute. Halliburton later tried to remove the arbitrator on the grounds of doubts as to impartiality, but a trial court found there was no appearance of bias against Halliburton which then appealed. While the appeals court accepted Halliburton’s concerns of unfairness where an arbitrator accepts appointments in overlapping cases with only one common party, the court found arbitrators, like judges, are to be assumed trustworthy and to understand that they should approach every case with an open mind. They found the mere fact of an overlap does not give rise to justifiable doubts of impartiality. While finding best practice calls for an arbitrator to disclose circumstances that would lead an observer to see a real possibility of bias, such that disclosure should have been made, they nevertheless rejected the appeal. See more here-- https://bit.ly/2I7QA3u and https://bit.ly/2I2ljir

Judge Kimba Wood Considers Special Master

U.S. District Judge Kimba Wood rejected President Trump’s request to unilaterally determine what material seized last week from his personal lawyer, Michael Cohen, is privileged. However, she may appoint a Special Master in the form of an outside attorney or retired judge to assess the records in an effort to carefully navigate the case, and asked each side for four names. Under Federal Rule 53, consent is not necessary. Subsection (a)(1) provides that non-consensual referrals may be justified by exceptional conditions that cannot be addressed effectively and timely by an available District Judge or Magistrate Judge. Notwithstanding Article III of the U.S. Constitution, non-consensual referrals to Special Masters have been sustained against constitutional attack where duties were performed under the total control and jurisdiction of the District Court. Lawyers for Cohen and Trump argued the seizure could lead to violations of attorney-client privilege. The investigation of Cohen, pitting the President against his own Justice Department, took another unexpected turn today with the courtroom revelation that one of Cohen’s legal clients was Fox News commentator, Sean Hannity. In considering appointing a Special Master, Judge Wood commented that it was not because of legal precedent, but in the interest of avoiding the appearance of bias in the politically charged case. Judge Wood said she wanted more information before ruling. Reportedly, to address concerns about “fairness” raised by Trump and Cohen’s attorneys, she said “a Special Master might have a role here. Maybe not the complete role, but some role.” It is unusual but not unprecedented for criminal investigators to seize documents from a lawyer, and there is a policy in place designed to shield information covered by attorney-client privilege using a “taint team” to review all the material and separate what is covered by the privilege. A lawyer’s communications with a client are not covered by the privilege if they did not involve legal advice or were used to further a crime or fraud. Judge Wood asked the government to make digital copies of all the material it had seized and share those files with Cohen’s lawyers, who would in turn share relevant information with lawyers for Trump. The goal, Judge Wood said, would be to have a sense of how much work would be required of a Special Master and, therefore, how long that process might take. Cohen, who is under criminal investigation for possible bank fraud and campaign finance violations, has come under scrutiny by federal prosecutors for his efforts to tamp down negative stories about Trump. In late 2016, he paid porn star Stormy Daniels $130,000 in exchange for her agreement not to discuss an alleged sexual encounter with Trump. Last week, it was revealed that Cohen had helped RNC Finance Chair, Elliott Broidy, negotiate a $1.6 million settlement with a former Playboy model who got pregnant after they had an affair. See full article here-- https://wapo.st/2HDe3qz

Important Posts Need Appointees

The Florida Dispute Resolution Center or DRC is currently accepting applications for new member appointments to the Alternative Dispute Resolution Rules and Policy Committee and the Mediator Ethics Advisory Committee, known as MEAC.

The ADR Rules and Policy committee provides the Supreme Court of Florida with recommendations relating to ADR legislation, and all aspects of ADR policy and rules including, but not limited to, model ADR practices, mediator certification and renewal requirements, continuing education requirements, and mediation training program requirements. MEAC is a nine member body that issues written advisory ethics opinions for mediators subject to the Florida Rules for Certified and CourtAppointed Mediators. The DRC is currently accepting applications for the appointment of three certified mediators who hold any type of certification. Please submit a letter of interest and current résumé to: Florida Dispute Resolution Center Supreme Court Building 500 S. Duval Street Tallahassee, Florida 32399 Fax: (850) 922-9290 Email: DRCmail@flcourts.org Deadline: April 23, 2018. See more information at links here-- http://www.flcourts.org/core/fileparse.php/549/urlt/ADRRPVacancyNotice.pdf and http://www.flcourts.org/core/fileparse.php/549/urlt/MEACVacancyNotice.pdf and see MEAC opinions link here-- http://fladr.org/cle-events/meac-opinions/

Judge Denies Sealing Confidential O'Reilly Settlements

This week, U.S. District Judge Deborah Batts, who is presiding over a federal defamation suit filed last year in New York refused to seal the confidential settlements reached between Bill O’Reilly and three women who accused the former Fox News host of misconduct. She rejected O’Reilly’s request to keep the agreements private, finding there is a long-established “general presumption in favor of public access to judicial documents.” She wrote that his concerns about disclosing “embarrassing conduct with no public ramifications” are not sufficient to trump the public’s right to view documents the court relies on to reach its decision in a case. “A possibility of future adverse impact on employment or the celebrity status of a party is not a ‘higher value’ sufficient to overcome the presumption of access to judicial documents,” Batts wrote. The judge noted, O’Reilly “asks the court to resolve a dispute by relying on the very documents he seeks to shield from public view.” Reportedly, the judge’s ruling creates an opening for attorneys to file the confidential agreements reached with the women who had accused O’Reilly of misconduct, and are now suing him for defamation for publicly dismissing their allegations as “politically and financially motivated” and part of a “smear campaign.” A former producer on The O’Reilly Factor who received a $9 million settlement was required to forfeit all audio recordings and written material — including notes, diaries, photographs, video recordings, letters and emails-- and to delete any computer files. She agreed to keep even the existence of such evidence confidential. Should the materials later become public, she was to disclaim them as counterfeit or forgeries and strict and complete confidentiality was the essence of this agreement. “The parties agree that the nature and terms of this settlement and agreement, including the existence of this agreement and the fact and amounts of any payments are to remain completely confidential.” A former Fox Business News host received a $3.25 million settlement from O’Reilly, a payout not previously disclosed. Under that settlement's terms, she could only disclose the amount of the payout to her tax advisers after the accountant signed a confidentiality agreement. The only person she told about the settlement was her husband. She, too, agreed to turn over any notes, recordings, emails, computer files or other documents dealing with any conversation she ever had with O’Reilly. The last woman received a settlement of about $100,000 as a junior producer at Fox News, in exchange for her silence. If anyone should ask what happened, she was to respond: “The matter has been resolved (or settled).” She also agreed not to disparage Fox News or any of its employees, including O’Reilly. The court opined that public would have no way to make sense of the its analysis of these claims with only partial or limited access to the settlement agreements. Just as with a Common Law right, she says, the First Amendment protects access to judicial documents if the documents “are necessary to understand the merits” of the proceeding. See full story here-- https://bit.ly/2EqvkA7 and link to ruling refusing to seal agreements here-- https://bit.ly/2GD1ZnZ

Insight into Trump Stormy Settlement Agreement

This week, porn star Stormy Daniels was on CBS's 60 minutes and since her interview, the White House reportedly isn't saying much, including declining for weeks to say whether President Trump was party to a $130,000 hush-money payment his personal lawyer, Michael Cohen, made to Daniels on the eve of the 2016 election. Cohen obtained a temporary restraining order against Daniels from a private arbitrator, a retired judge, barring her from disclosing "confidential information" related to the nondisclosure agreement. A lawsuit was filed after a multiple reports alleging that Daniels and Trump had an affair beginning in July 2006 at a celebrity golf tournament and was paid money for her to keep quiet in October 2016. While Daniels initially denied the affair, her decision to file the lawsuit confirmed her part in the affair. She and her lawyer, Michael Avenatti, even included the text of the “hush agreement” as an exhibit attached to her complaint which, interestingly, uses pseudonyms for the parties and says they wish to avoid the lime, expense, and inconvenience of potential litigation, and to resolve any and all disputes and potential legal claims between them. The case was filed in L.A. Superior Court and then removed to federal court. The first controversy likely to be taken up by the judge is whether the dispute must be handled in arbitration, where Daniels is being pursued for allegedly breaching contract by making public statements about Trump. Also at issue, is who signed the agreement on behalf of whom. Although Trump hasn't formally moved yet to compel arbitration, the mere threat has prompted Avenatti to argue depositions of Trump and Cohen each are necessary in order to collect facts that bear directly on the formation of the hush agreement. See copy of initial pleadings, including agreement as exhibit linked at bottom of story here-- https://bit.ly/2GASrNK and more on federal court proceedings linked to this report-- https://bit.ly/2IdwotF

Tune in for Open Ninth This Month

Join me March 21st for my guest appearance on Open Ninth, a first of its kind podcast hosted by Ninth Judicial Circuit Chief Judge Fred Lauten. This program features candid perspectives from judges and interviews with innovators in the legal field. These 'Conversations Beyond the Courtroom' are part of a new communications plan put in place by the Florida Supreme Court that seeks to better connect the courts with citizens. Since 2001, I've mediated lawsuits in this circuit and around the state as a certified mediator. I also served as a General Magistrate in the Civil Division, presiding over circuit cases in Orange County in 2013. In this episode, I discuss my experience as a mediator and the important role of mediation as an effective tool of alternative dispute resolution in the justice system. Be sure to listen here: http://www.ninthcircuit.org/openninth

Takata Settlement Impacted by Bankruptcy

This week, 44 states and the District of Columbia agreed not to collect a $650-million deal to settle consumer protection claims so victims of Japanese airbag maker Takata Corp.'s faulty inflators can get a bigger piece of the company's remaining money. Takata was forced into bankruptcy last year amid lawsuits, multimillion-dollar fines and recall costs involving inflators that use explosive ammonium nitrate. The chemical propellant deteriorates over time when exposed to high heat and humidity and can then burn too fast, blowing apart its metal canister. Attorneys General for the states alleged that Takata concealed air bag issues and failed to disclose safety defects. Under this deal and a reorganization plan just approved by a federal bankruptcy judge in Delaware, Takata agreed not to represent its air bags as safe unless supported by scientific evidence, not to falsify any testing data, and to keep cooperating with automakers to make sure replacement inflators are available. It also agreed not to sell any airbags that use ammonium nitrate, unless for recall replacement parts. Some of the provisions already were included in an agreement with the National Highway Traffic Safety Administration. Takata had agreed under a DOJ plea to pay victims $125 million and to pay $850 million in restitution to automakers that bought its inflators and are stuck with recall and litigation costs. Under the restructuring plan, Takata will sell most of its non-air bag assets to a Chinese-owned rival for $1.6 billion. Reportedly, the airbag inflator problem touched off the largest automotive recall in U.S. history. Some 69 million inflators in the U.S. and another 60 million worldwide are being recalled, according to court documents and the National Highway Traffic Safety Administration. See more here-- http://lat.ms/2EO0McD

Biblical Origins of Mediation

Today, I attended a Cardozo Legal Society lunch featuring Rabbi David Kay of Congregation Ohev Shalom which just celebrated its 100th anniversary in Orlando. The topic focused on secrecy in Jewish Law or Halaka. Keeping secrets is the stuff of modern common law and is specifically directed in our own oath of attorney in Florida as keeping the secrets of clients inviolate. Given the tendency of human nature to engage in conflict, it is not surprising that mediation is rooted in the history and tradition of many lands and cultures. We find in the Old Testament that Aaron, the first priest of ancient Israel, was the older brother of Moses. While Moses was mediator between God and Aaron, Aaron served as mediator between Moses and the people. Aaron believed in keeping shalom and caused peace to reign between man and his fellow man. While the details of Aaron’s approach are not revealed in Torah or Talmud, there is reference to Aaron which appears to signal biblical legitimacy for an alternative approach to the resolution of disputes outside of the judicial system. Law today still reflects Rabbinic and Talmudic views on dispute resolution. An aggrieved individual has access to the courts and a right to application of the law by a trier of fact. There is also the ability to have a professional neutral facilitate the resolution of those disputes through private caucuses that often reveal things the other side will never learn due to confidentiality which can be crucial to self-determined outcomes at mediation. We take solace in knowing questions we face every day in the field of dispute resolution were also faced by Rabbis and Hebrew sages thousands of years ago. See more here-- http://bit.ly/2CfGiYd

Blockchain Dispute Resolution?

In all the craze surrounding blockchain technology, it seems a means of automating dispute resolution processes so that parties could benefit from a platform using smart contracts has emerged. Reportedly, Kleros, a decentralized organization powered by the foundation of Ethereum blockchain could manage a decision protocol supporting a multipurpose system custom deployed into smart contract code to arbitrate disputes. Smart contracts built to integrate with Kleros would give parties with conflicts over terms of off-chain contract fulfillment an opportunity to have impartial jurors from across the globe weigh evidence, vote, and select a resolution to be carried out by the contract. Supposedly, evidence is kept private via a hash and asymmetrical encryption in order to protect the sensitive information of the users and provide a proof to the blockchain without revealing the data. Deciders must stake a native token to the platform, pinakion, which makes them eligible to vote on active disputes. Staking more pinakion increases the chances that a juror might be selected. Pinakions act as a metric of reputation and are a key to the Schelling game theoretical model driving the voting mechanism for jurors. The voting system works by having the jurors analyze the evidence of the case and commit their votes by submitting a hash of their vote and a secret value. The Kleros smart contract verifies values revealed and votes committed are unchangeable nor revealed in the application layer to other jurors or parties to prevent influencing the votes of other jurors. Under the system, jurors are to be compensated by fee schedules relative to the various parameters to be hammered into the smart contracts governing, so that both parties will be responsible for making a deposit which will cover the fee. In the case of appeals, the party who covers the fee will be decided by the arbitrable smart contract. The system is not designed to limit appeals, however each appeal increases the number of jurors necessary to conclude the case and thus causes the fee schedule to rise with each additional juror. In theory, although it would become expensive, someone could continue to appeal a case indefinitely, although the costs would ostensively outweigh the benefits. Kleros CEO, Federico Ast, gave an example at a recent TedX talk involving an airline passenger filing a complaint against an airline and two days later being emailed that a jury has ruled for issuing a free ticket. While this looks like another example of automation, he says the human element in this smart-contract resolution protocol is the key to the future of the justice system because it leverages the dynamics of the ancient Greek legal system, which used regular citizens instead of professional court officials. See more here-- http://bit.ly/2nmN8GP and http://bit.ly/2EtxmBo

Water Wars Reach U.S. Supreme Court

This month, attorneys for Florida and Georgia appeared for oral argument before the U.S. Supreme Court in an original jurisdiction case previously tried before an assigned Special Master back in 2016. A ruling in the decades-long "Water Wars" case came in the form of a recommendation favoring Georgia 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. Special Master, Ralph I. Lancaster, Jr., had strongly advised the states to settle out of court rather than live with a costly decision neither will like. The states mediated the case and even had a post-trial mediation. Florida still seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. The Sunshine State reportedly gleaned a ray of hope from the high court proceedings. “It’s common sense that that water, if left unattended, would flow down stream,” a testifying riverkeeper in Florida said, a sentiment that appeared to resonate with some of the justices. Justice Elena Kagan acknowledged that Florida had “common sense” on its side. “Can we agree that a cap at the very least would prevent the situation in Florida from getting worse?” Justice Ruth Bader Ginsburg asked. Chief Justice John Roberts also weighed in when confronted with the role of the Army Corps of Engineers, “It seems to me it's asking an awful lot of Florida to have to say: We know that the Corps is going to change things the way it benefits us.” A final ruling may not come for months. See more in stories here-- https://usat.ly/2rlbS6J and http://fxn.ws/2Dj8n5j

SCOTUS Denies Cert on 5th DCA Ruling Against Arb

The U.S. Supreme Court declined last week to review an appellate ruling by Florida's Fifth District Court of Appeal (5th DCA) that found a patient arbitration agreement unenforceable because it ran afoul of state law, despite the health care provider’s warnings that the ruling could render other health care arbitration agreements here unenforceable. The U.S. Supreme Court refused to grant Kindred Hospital East LLC's certiorari petition, just the latest in a series of long-running battles over the enforceability of health care arbitration agreements. Kindred asked the U.S. Supreme Court to review the state appeals court’s refusal to force the arbitration of medical malpractice claims, saying the decision violates the Federal Arbitration Act. The fundamental dispute lies between state courts and the high court over the scope of the Federal Arbitration Act, as both sides in the dispute argue in their briefs. Kindred asserted if the ruling below was permitted to stand, every contractual agreement to arbitrate healthcare disputes in Florida would be unenforceable. The underlying Plaintiff had sued Kindred and several doctors for medical malpractice in state court after she suffered unspecified injuries during a 2012 stay at an Ocala hospital, a move Kindred argued was prohibited by an arbitration agreement signed by both parties. Florida's 5th DCA sided with the Plaintiff in the summer of 2016 and overturned a trial court’s ruling that compelled the parties to go to arbitration, per the terms of the contract. The appeals court found that the arbitration agreement was invalid because it selectively incorporated provisions from Florida’s own Medical Malpractice Act (MMA) that were favorable to Kindred and left out provisions favorable to patients. Specifically, public policy prohibits the enforcement of an arbitration provision that incorporates some, but not all, of the MMA's arbitration provisions. See more here-- http://bit.ly/2mw6Nmf and http://bit.ly/2EG8ipq and http://bit.ly/2FDvSoj

FLABAR ADR Section Meeting 1/17/18 in Orlando!

Happy New Year from Orlando Mediator! Please join us as our Executive Council of The Florida Bar Alternative Dispute Resolution (ADR) Section convenes in Orlando during the bar's mid-year winter meeting. Founded some eight years ago, around the time I started this blog, the ADR Section was designed to provide a forum for lawyers and attorney-mediators interested in alternative dispute resolution and a place to share common interests, ideas and concepts. It is not for non-lawyer mediators. The ADR Section regularly puts on continuing legal education (CLE) programs, as well as provides advocacy in rule changes, legislation and commentary to the Supreme Court of Florida when dealing with proposed amendments in all forms of alternative dispute resolution. Any member in good standing of The Florida Bar interested in the purpose of our section is eligible for membership upon application and payment of the ADR Section’s annual dues (which are just $35) and can be added to your regular bar dues at the time of renewal. Any member who ceases to be a member of The Florida Bar in good standing shall no longer be a member of the ADR Section under its by-laws. Hope to see you at the Hilton Double Tree Orlando this month as we debate our position regarding important legislation that has been introduced for the next session which I discussed on this blog last month! More information on our meeting and the section can be found here-- http://fladr.org/events/the-florida-bar-winter-meeting-and-adr-executive-council-meeting/