Friday, June 29, 2018

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-- and opinion here--

Monday, June 25, 2018

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--

Saturday, June 16, 2018

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-- and a link to DRC's annual conference next month in Orlando,"Promoting Mediator Professionalism," here--