Remote CME & Training To Continue

This week, the Supreme Court of Florida amended an administrative order (AO) regarding mediator certification and renewal. This continues the judicial system's periodic update for measures to address the effects on court operations of the Coronavirus Disease 2019 (COVID-19) pandemic. Please note this is an amendment to AOSC20-24 issued in the spring. Some provisions of the order expire on December 31, 2020, and some provisions have been extended until December 31, 2021. The Dispute Resolution Center states in a message to mediators that the AO should be read carefully as all dates listed are correct. Provisions that have been extended through December 31, 2021 include:

1. Training programs are allowed to be conducted online 

2. Certified mediators may complete their CME requirements in any format including non-live programs

3. Rules for Certified and Court-Appointed Mediators suspended as to required points for mentorship (except for county mediator certification, some mentorship activities may still be needed for applicants to reach the required points for certification)  

4. Electronic signatures of mentors in the mediator certification application may be provided; and

5. Deadline extensions granted for approved mediation trainers through December 31, 2021.

See more here-- https://bit.ly/2LR95gi

Mandatory Non-Binding Arbitration Now Available

A new Administrative Order in Ninth Judicial Circuit Court of Florida now permits a presiding circuit or county court judge to refer civil cases to non-binding arbitration without the consent of the parties, much like cases are referred to mediation. This is the first time in our local courts that such a dispute resolution mechanism, other than mediation, is available for the judicial officer to resolve backlogged cases due to Covid-19 court closures. The development is expected, as other jurisdictions have demonstrated success in culling dockets with this technique. Though some counsel and their clients have expressed disdain for the process, which can be more like a mini-trial, others have found it useful in getting to the heart of the dispute. Per the order, the non-binding arbitration hearing shall be conducted informally with a decision within ten days of the final adjournment. Presentation of testimony shall be kept to a minimum and other matters shall be presented primarily through the statements and arguments of counsel. Arbitration fees shall be equally divided between the parties, unless otherwise agreed by the parties or ordered by the court. The arbitrator or chief arbitrator shall determine the hearing procedures in advance of the hearing, including what live testimony, if any, will be permitted and the nature, scope, and duration which will be set forth in the Notice of Non-binding Arbitration Hearing. When a case is referred to non-binding arbitration the parties shall have fifteen days within which to agree on the number and selection of their own arbitrator(s); otherwise, the presiding judge shall determine the number of arbitrators and select them. See more here-- https://bit.ly/3oD0QlS

A Decade of Orlando Mediator

Today marks 10 years since I began writing this blog to help keep the legal community abreast of the latest goings-on in mediation, arbitration and other forms of dispute resolution. In the interim, this blog has been recognized as an official ABA "Blawg" by the American Bar Association, voted as a finalist for The Expert Institute Best Legal Blog in the Legal News category and a current Top 10 Dispute Resolution Blog and Website to Follow on Feedspot.com. My first entry had to do with arbitration as a process being under attack and that remains true today. Some things that have changed are the remote nature of these processes, especially since the pandemic began. These changes have advanced the use of state of the art technology like Zoom, now comfortably utilized by professionals, parties and their counsel alike. My alternative dispute resolution practice has continually evolved since becoming certified in 2001 in Circuit-Civil mediation by the Florida Supreme Court and serving as a full-time neutral since 2010. In the last decade, I have handled resolutions of multi-party complex cases in state and federal trial courts. I also facilitated post-trial settlements with cases pending in the Fifth District Court of Appeal, where I was a member of the pilot program for appellate mediation that endured with the creation of an Appellate mediation certification, for which I was grandfathered. Since litigation costs have gone up, courts are extremely backlogged due to Covid and the economy remains tentative, early settlements continue to be favored in most matters. Pre-suit mediation is popular and can be effective if the parties have just enough information to evaluate their positions in the potential litigation. All in all mediation has never been more popular in Florida and other docket-culling measures like mandatory non-binding arbitration are on the rise. Thanks for your readership and paying attention to my musings about all things in modern-day peacemaking. Be well and stay healthy!

ADR Arbitration Advocacy Institute 11/13!

Please join me this month at the ADR Section of The Florida Bar's inaugural Arbitration Advocacy Institute. This innovative program is a one-day, online workshop for attorney-arbitrators that will provide coaching on mechanics, technology and professionalism to help Florida attorneys boost their arbitration advocacy skills. Attendees will increase their knowledge of the arbitration process from beginning to end-- distinct from mediation and litigation-- and participate in virtual clinics for diverse arbitration practice areas. A prestigious faculty of over 30 presenters will demonstrate effective and ethical techniques that will enable participants to reach the highest levels of advocacy in arbitration. Login on Friday, November 13, 2020 from 8:45 a.m. to 6 p.m. with an optional virtual networking hour on November 12 at 5:30 p.m. This course has been approved for 8.5 General CLE credits in Florida 1.0 of which may be applied toward Professionalism, and 1.0 Technology credit. Participants earn 1.5 additional General CLE credits for participation in a Virtual Clinic. Section members $185, non-section members $230 and law students just $60 (includes ADR Section membership). See more information and registration details here-- https://flabaradr.com/arbitration-advocacy-institute and https://bit.ly/3kRtgaz

ADR Rules & Policy Urges Uncertified Mediators Be Bound

Last month, the ADR Rules & Policy Committee of the Florida Supreme Court filed a response to comments on its own proposed rule revisions, stating that the court has the inherent authority and obligation to ensure that the mediation process parties use operates in accordance with mediator rules and standards already adopted. The proposed revisions pertain to the practice and procedures of mediation in the court system and therefore fall under the Court’s authority under Article V, Section 2(a) of the Florida Constitution. The proposed rules require those who mediate court connected cases as part of the machinery of the judicial process to observe the existing rules of mediators, regardless of certification. Mediation has been an integral part of the Florida court process for over thirty years. The committee found it inconsistent and illogical to have one group of professionals in the court process who are subject to no ethical standards and disciplinary process involving the vitally important mediation service they provide to the parties and the court system. Florida court mediators are not only required to be familiar with the statutes and rules governing mediation, but are also obligated to follow court rules of procedure, administrative orders, local rules, and any other rules related to mediation in the court system. ADR Rules & Policy did not yield to criticism found in the comments filed and urged the court to proceed by adopting proposed amendments to Florida Rules of Civil Procedure 1.710 and 1.750; Florida Small Claims Rule 7.090; Florida Rule of Juvenile Procedure 8.290; Florida Rule of Appellate Procedure 9.700; Florida Family Law Rule of Procedure 12.741; and Florida Rules for Certified and Court-Appointed Mediators 10.200 and 10.700. The committee stated parties and their attorneys are still free to choose whomever they want to mediate their case without the beneficial boundaries of mediator ethics and a disciplinary system to enforce them, provided that they mediate prior to filing a court case. They may also choose to use any type of ADR process prior to filing a lawsuit. However, the committee made clear it does not believe the creation of an exempt group of compensated court professionals was the intent of the court for mediation in Florida. See more in Case Number: SC20-565 here-- http://onlinedocketssc.flcourts.org

 

Rare Florida Case Addresses Arbitrability

This year, a Florida district court of appeal chose to delve into what they saw as a "rather arcane" issue in arbitration of who decides whether a dispute is subject to a contract's arbitration provision: an arbitrator or a judge? There are many recent decisions from around the country deferring to the arbitrator. However, the majority explains the contract's provision in this case did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability. Unbeknownst to the renter of an Airbnb, the host had installed hidden cameras throughout the unit. Plaintiff alleged that Defendant secretly recorded the entire stay in the unit. For this violation of privacy, a lawsuit was filed in state court. Airbnb then filed a motion to compel arbitration. Airbnb argued the claims were subject to arbitration through Airbnb's Terms of Service, under which the renter agreed to be bound to pursuant to a "clickwrap" agreement. The arbitration provision contained fairly standard language such as "You acknowledge and agree that you and Airbnb are each waiving the right to a trial by jury." The court held that the clickwrap agreement's arbitration provision and the AAA rule it referenced that addresses an arbitrator's authority to decide arbitrability did not, in themselves, arise to "clear and unmistakable" evidence that the parties intended to remove the court's presumed authority to decide such questions. The evidence on what these parties may have agreed to about the "who decides" arbitrability question was considered ambiguous. Therefore, the trial court retained its presumed authority to decide the arbitrability dispute. A conflict with decisions from other districts was certified. See full opinion here-- https://tinyurl.com/y4oyxsgv

FL Courts Largely Remain Closed

Even with a falling case trend of recent Covid-19 statistics, the courts around the state are in phased reopening status, a daily snapshot of which can be found at the link at the end of this update. The Supreme Court of Florida's evolving Emergency Procedures orders have focused on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." This is good news for parties and their counsel who can't get to a jury just yet. Remember, some 98% of cases settle before trial. A few circuits have engaged in the limited pilot program of remote trials with mixed reviews. At present, all courts remain at either Phase 1 or 2 in this continuing pandemic. As a reminder, Phase 1 means in -person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare. Phase 2 encompasses limited in-person contact is authorized for certain purposes and/or requires use of protective measures. Phase 3 states in-person contact is more broadly authorized and protective measures are relaxed. Finally, one day (hopefully next year) we will get to Phase 4 when COVID-19 no longer presents a significant risk to public health and safety. In the meantime, call your mediator and get those pending matters settled! See more here in this updated color-coded guide-- Court Phased Opening Status

Revised Guidelines For FL Phased Court Operations

 

This week, the Supreme Court of Florida amended guidelines for the four-phased timeline that will govern the return to normal statewide court operations. The four phases were established in prior orders issued since the state courts began pandemic operations in March, all based on recommendations of a COVID-19 Workgroup and general public health guidelines. The Workgroup’s mission is to find ways for courts to operate as fully as possible during each phase of the pandemic. The Workgroup is chaired by Ninth Circuit Judge Lisa Munyon from Orlando. The amendments pertain to the so-called Comprehensive Measures and the Public Health & Safety Precautions that provide standards for pandemic operations in the state courts. They make the following major changes: 1) Provide updated criteria for the transition to different phases 2) Require a human resources policy at each court to address potential COVID-19 exposure of court employees and judges 3) Update health screening criteria for entry into a courthouse  4) Provide updated guidance for courts in monitoring local conditions and public health data when expanding in-person proceedings and 5) Provide a methodology to determine deteriorating local health conditions that would require an amendment to a local operational plan or a return to an earlier phase. Florida’s courts have been operating under emergency guidelines since March when the court suspended jury trials and took other actions restricting potential disease spreading activities in the state courts. Some limited jury trials have resumed in parts of the state using remote technology for all or part of the proceedings (refer to my prior post) See more in revision 6 of the COVID-19 admin order here-- https://tinyurl.com/yywqmeb6

No Takers On Virtual Trials In Orlando

While the 4th and 11th Judicial Circuits of Florida have utilized remote technology in selecting jurors and trying cases during COVID-19 court closures, the 9th Judicial Circuit has yet to attract parties and counsel despite its selection for the pilot program authorized by the Supreme Court of Florida. As such, the court has even created wanted posters: 

The Ninth Judicial Circuit Courts have been selected as one of only five (5) sites in the State for the Remote Civil Jury Trial Pilot Project!* 

              

Civil jury cases that meet the following five (5) criteria: Two (2) parties only; In-person jury selection may be accomplished in two (2) hours or less for each party; The evidentiary portion of trial can be completed remotely in less than two (2) days via Zoom, Teams or WebEx (instruction, closings and deliberations to occur in person); The case is ready for trial in July 2020; and, Both parties consent to a remote trial in the pilot project and waive any appellate issue as to the manner in which the case was tried. If you believe you have a case that meets all the criteria, and you want to be on the cutting edge of trial law in the entire United States (maybe even the whole world!), contact your division trial judge in Orange or Osceola for more details immediately. There are limited spots for this opportunity! All trials must be completed by October 2, 2020. Be among the very first in the Central Florida community to try a case remotely! If you have any questions about the Civil Jury Trial Pilot Project, please contact Judge Lisa Munyon at 40orange@ninthcircuit.org

*For additional details, see Fla. S. Ct. AOSC20-31 and your Orange/Osceola division trial judge. 

So far, the results from other jurisdictions have been encouraging with some anecdotes to be sure! See more here-- https://tinyurl.com/yyv73smk

Orlando Mediator's 400th Post! Standard of Review for Settlements De Novo

A District Court of Appeal (DCA) in Florida has concluded the standard of review of a trial court’s decision under section 44.405(4)(a)5. of the Mediation Confidentiality and Privilege Act, regarding whether a confidentiality or privilege attaches to a mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation,” is de novo. In the recent decision of Brickell Financial Services - Motor Club, Inc. v. Road Transportation, LLC, on remand the trial court was instructed by the Fourth DCA to weigh the settlement accounting, along with the parties’ mediation communications, and any other admissible evidence, in determining whether a meeting of the minds occurred regarding the dollar amount to which the term “Settlement Sum” referred and, if so, what that amount was. They cited a prior decision in DR Lakes Inc. v. Brandsmart U.S.A. of West Palm Beach, Inc., 819 So. 2d 971 (Fla. 4th DCA 2002), which pre-dated the legislature’s enactment of section 44.405 in 2004, but interpreted section 44.405’s predecessor, section 44.102(3), Florida Statutes (2001). That was after initially stating “all mediation communications shall be confidential,” the legislature created an exception in section 44.405(4)(a)5. for any mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.” The Fourth DCA reminded parties and the trial court that a party seeking to enforce a settlement agreement bears the burden of showing the opposing party assented to the terms of the agreement. See more here-- https://bit.ly/3eyYP5I

ADR Rules & Policy Petition: Comments Due 7/31!

The ADR Rules & Policy Committee of The Supreme Court of Florida has petitioned the court for the passage of amendments that would require all mediators who mediate actions filed and pending in any Florida court be subject to Parts II, Standards of Professional Conduct (ethical standards), and III, Discipline (disciplinary process), of the Florida Rules for Certified and Court-Appointed Mediators, regardless of whether or not a court order of referral has been issued. The Committee also recommends the addition of corresponding language to Rules 10.200 and 10.700, Florida Rules for Certified and Court-Appointed Mediators. The amendments are designed to remedy two shortcomings in the existing rules. First, mediators who are not certified are currently not subject to the rules if they mediate a filed court action before an order of referral is issued. Second, although it is the Committee’s opinion that uncertified mediators selected by the parties, but not appointed by a specific court order after review by the presiding judge as required by the procedural rules, are subject to the ethical standards and disciplinary process, the Committee believes there is a dispute regarding whether a general order of referral suffices to constitute a court appointment. This petition is designed to remedy those issues. The amendments submitted in this petition originated in 2017 as a Committee proposal that would have required all mediators of state court trial and appellate cases be Florida Supreme Court certified, with appointment restricted to their subject matter areas of mediator certification (mandatory certification was also supported by a majority of the Executive Council of The Alternative Dispute Resolution Section of The Florida Bar). Comments must be filed by July 31, 2020, after an extension was granted. See more here-- https://bit.ly/36ZMzIz

New Admin Order: Orange-Osceola Courts Opening

Please take note this morning that everyone entering the courthouses in Orlando and Kissimmee will be required to wear a mask and undergo a health screening with a temperature check before entering the building. Masks shall be worn in all public areas of the court facility, including courtrooms or hearing rooms, unless the Judge or Judicial officer authorizes its removal. Per the Administrative Order by Chief Judge Myers, all persons will be checked for their body temperature using an infrared or other non-contact temperature device before entrance to a court facility. Any person who registers a body temperature of 100.4 degrees or greater shall not be permitted to enter the court facility. In the event an individual refuses to undergo a health screening or temperature check, or refuses to wear a mask for entrance to the court facility, the security personnel or other person performing the health/temperature checks shall attempt to obtain and record the same information described above. Once the information is obtained, the information shall be provided to the appropriate Judge, Judicial Officer, Clerk, or other court facility occupant so that alternate arrangements can be made for the person, such as a remote appearance, rescheduling a hearing, or other measures, as necessary. In regard to civil proceedings, according to last week's judicial town hall meeting, remote hearings are still a priority and dispute resolution via electronic means is still encouraged during COVID-19. UPDATE: Court returned to Phase 1 restrictions due to spiking Coronavirus numbers June 23, 2020. See full order here- https://bit.ly/2yPCZLA

Florida Courts Remain Closed

This week, the Chief Justice of the Supreme Court of Florida acted on the recommendations of a statewide Court Continuity Workgroup, issuing an amended administrative emergency order increasing the list of proceedings state courts will accomplish by remote technology during the Coronavirus pandemic. As such, jury trials in Florida are suspended until July 2nd and other deadlines are pushed back until following the July 4th holiday weekend. The court recognized that in-person jury trials pose a special hazard because they can expose jurors and other courtroom participants to a risk of infection. Future extensions will be considered, if needed. Of interest to followers of this blog, the order especially focuses on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." Case types listed in the order will be held by telephone or other electronic means. Of course, online ADR or ODR has been in full effect since this all started using various existing commercial platforms like WebEx, Zoom and GotoMeeting. Additionally, the Continuity Workgroup that I blogged about last month was asked to submit recommendations as they are developed to guide a phased return to full court operations. The expanded list of essential proceedings adds to earlier efforts to mitigate the impact of Coronavirus while letting courts operate in a way consistent with public safety. Florida’s courts have followed emergency guidelines since a March 13th order, when jury trials were first suspended and actions restricting in-person proceedings were implemented to enforce social distancing. Subsequent orders extended these limits through the end of May, subject to future orders made necessary by the pandemic. Chaired by Orlando Circuit Judge Lisa Munyon, the Court Continuity Workgroup’s mission includes examining the current status of all court proceedings statewide and proposing methods for resolving cases with remote technology and other new procedures that may remain when all this is over. According to the court, the move toward more virtual proceedings is a major historical shift in state court operations, which have relied heavily on in-person hearings in the 175 years Florida has been a state. See more in the latest Administrative Order here-- https://tinyurl.com/yb7jypo9

Small Claims ODR Pilot Begins

The Ninth Judicial Circuit Court of Florida begins its free Small Claims Online Dispute Resolution (ODR) program this month in Orange County. If both parties provide an email address on file with the court in a case that qualifies for ODR, the court will notify them of the availability to use ODR to resolve the case. The email will also provide instructions on how to register with the Online Dispute Resolution Center located at the custom domain found here-- https://flcourts09sc.modria.com. There, the plaintiff will answer some questions about the case. The court will then send the defendant an email. The defendant should review the information and provide a response. If a solution can't be found with the other person, either can ask for help from a real mediator (Surprise, AI not quite the end-all be-all yet!). A mediator is a certified specialist trained to help litigants in County Court reach a resolution. There is no longer a need to appear for a Pretrial Conference Mediation date if the parties reach a signed agreement using the Online Resolution Center. Timeliness matters in this process which must be completed at least 10 calendar days before the Pretrial Conference Mediation date. If parties do not complete the process by the deadline, they will need to appear for the assigned Pretrial Conference Mediation date. This process comes about via the court being an existing licensee of software like Odyssey from Tyler Technologies. Specifically, they are allowing the use and integration of Modria, which has a demonstrated record of resolving small dollar consumer cases in online commerce. I spoke to representatives of the public company last year and they plan to expand in other jurisdictions. See more here-- ow.ly/yJ5w50zu80h and https://tinyurl.com/yafdrm63

COVID-19 Court Continuity

The Supreme Court of Florida just released an Administrative Order creating a Florida Court Continuity Workgroup, consisting of a seventeen member task force meant to find ways for the courts to operate as fully as possible during each stage of the Coronavirus pandemic. Chief Justice Charles Canady selected our very own Ninth Circuit Judge Lisa Munyon to chair this workgroup. I worked alongside her as a General Civil Magistrate, hearing matters in Orange County's Circuit-Civil Division Business Court cases. She is a very effective judge and also leads the statewide Florida Courts Technology Commission that explores traditional and innovative methods of utilizing compatible technology infrastructures to improve case management and efficiencies in the judicial branch. As chair of the new workgroup, she will guide esteemed law professionals from across the state in their mission to examine the current status of court proceedings, propose methods and rule changes, find solutions for legal issues, and in recommending the priority of proceedings to resume. Specific to Alternative Dispute Resolution (ADR), the members will identify and propose solutions for implementation challenges and cost issues associated with the use of remote technology. The workgroup will also consult with other stakeholders and public health experts to determine the best way to implement a plan for a staged return to full court operations. See full order AOSC20-208 here-- https://bit.ly/2Vs0jaM

New Florida Supreme Court ADR Order

The Supreme Court of Florida in monitoring and taking measures to address the effects on court operations of the Coronavirus Disease 2019 (COVID-19) pandemic has issued a new order affecting mediators and arbitrators. As the Supreme Court of Florida is the authority to establish standards and procedures for qualifications, certification, conduct, and training for mediators and arbitrators who are appointed pursuant to Florida Statutes, the court has issued an order during this crisis including: -Granting deadline extensions and abating late fee assessments for mediator certification and mediator renewal. -Allowing certified mediation training programs, approved arbitration and approved parenting coordination training programs to be conducted online. -Allowing certified mediators to complete all of their CME requirements in any format including non-live programs. -Granting deadline extensions for approved mediation trainers and certified mediation training program provider renewal applications. -Providing for remote training means instead of physical attendance through the end of the year for mediators and arbitrators. In addition, the Dispute Resolution Center will accept mediator certification applications and mediator renewal materials electronically. Instructions for electronic submission will be sent to individual mediators at the time of renewal notification. Materials can be faxed to 850-922-9290 or emailed to DRCmail@flcourts.org. See full order here-- https://bit.ly/2Xzi09Z

Online Dispute Resolution - Here to Stay?

With the Coronavirus crisis severely curtailing the practice of law in courthouses across the country, many are turning to settling cases using readily available technology. Mediations have been conducted by Zoom, GoToMeeting and Skype, as well as telephone and text. There is no barrier to attending using off-the-shelf equipment and simple apps available for download. Though we have utilized these methods before the COVID-19 pandemic, it was usually due to the unavailability of a party in person and to enable remote attendance at a mediation conference. Because trial dockets across the country are now in disarray, mediation of pending cases provides the soonest means of self-determining an outcome to cases. Online Dispute Resolution or ODR solutions can be accessed from the comfort of your couch-- talk about social distancing! As with traditional mediation, online mediation allows the mediator to adapt the process to address the particular needs of parties. Caucuses are still possible, ensuring confidentiality and candor in negotiation. As these participants can attend from their businesses or homes, there are reduced costs and less time expended overall in convening the process. Access problems are no longer an issue with the use of cell phone applications widely available for devices of all stripes with the most popular communication platforms in the marketplace. Some will say there are disadvantages to not being in person, such as the ability to read the room or to poke your head into a caucus for a "Would you, could you?" Of course, there is a 3,000 year tradition of face-to-face mediation, but that doesn't mean ODR cannot be effectively employed in many types of cases. Whether a settlement is reached or not, much is still learned by parties and counsel through the exercise. We shall see what the future of this uncertain time holds and it will eventually pass, but it is likely ODR will be adopted by many a dispute resolver and their clients. Stay healthy out there!

Order Curtails Courts in Florida, So Mediate!

The Chief Justice of the Supreme Court of Florida today ordered most in person legal proceedings in the state courts be suspended for a minimum of two weeks due to the COVID-19 virus. The order takes effect Monday. Local judges will use remote electronic means of conducting legal proceedings whenever possible. The order will be extended or modified as needed in the future and is subject to existing constitutional requirements. Under Florida's Constitution, the Chief Justice is the chief administrative officer of the state court system and can issue orders with statewide effect. This is the first time a limit on face-to-face proceedings has been ordered since Florida’s state courts system was unified by a constitutional amendment approved by voters in 1972. The court found these measures are needed because a public health emergency exists, requiring social distancing to reduce transmission of the Coronavirus which is now a pandemic. The order is designed to slow the spread of infectious disease by eliminating gatherings of the public such as jury duty and trials. However, mediation remains available to litigants in the absence of court proceedings and can be conducted by remote attendance or online dispute resolution (ODR), which my firm offers. We expect the business of dispute resolution will go on with the help of technology, allowing attendees the opportunity to participate without spreading infection. See more on our ODR options here-- https://tinyurl.com/twd4nl4 and the court's full order here-- https://tinyurl.com/wrt7hug

ADR Rules & Policy Vacancies

The Supreme Court of Florida's Committee on Alternative Dispute Resolution (ADR) Rules and Policy needs members. This is a powerful committee that recommends changes to existing rules and implements new ones via proposals submitted for oral argument following public comment. The Florida Dispute Resolution Center (DRC) is currently accepting applications for eight member appointments to the Committee on ADR Rules and Policy. Appointments are made by the Chief Justice of the Supreme Court of Florida based upon competence, specialized knowledge, experience in ADR processes, and a commitment to the time necessary to be an active contributor to the committee’s work. The committee consists of 17 volunteer members and may include mediation trainers, Florida Supreme Court certified mediators, arbitrators, trial court administrators, parenting coordinators, attorneys, and judges. Generally, members are appointed for staggered three-year terms. However, these terms will begin July 1, 2020, and end November 30, 2023. No member shall serve more than nine years. According to the official announcement, the committee provides the Florida Supreme Court 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. Letters of interest and current résumés may be submitted on or before April 10, 2020, to: Florida Dispute Resolution Center, Supreme Court Building, 500 S. Duval Street Tallahassee, Florida 32399 or fax (850) 922-9290 or DRCmail@flcourts.org See link here-- https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution

Dash for Arbitration

DoorDash delivery workers filed thousands of individual claims at once as initial fees approach $12 million for the company. Under District Judge William Alsup’s order this week in Abernathy v. DoorDash pending in the Northern District of California, DoorDash must arbitrate over 5,000 individual disputes with various workers who claim that they were misclassified as independent contractors, when they should be treated as employees. It also must pay a $1,900 fee for each of these individual arbitration proceedings. As with other gig economy platforms, DoorDash includes an arbitration agreement in its contracts with couriers, who deliver food orders. But after facing a flood of claims, DoorDash balked at the costs of going into arbitration administered by the American Arbitration Association (AAA) where couriers themselves paid more than $1.2 million in filing fees. After Uber imposed arbitration and a class action ban, more than 60,000 of those drivers sought to arbitrate claims against the company. Faced with legal costs of at least $600 million, Uber settled the a majority of these claims last spring. Could the same happen in this case? Another California federal judge similarly compelled arbitration in a case with thousands of claims against Postmates, asking the attorneys to explain how the company’s refusal to pay arbitration fees didn’t amount to contempt. A ruling is pending on that issue. DoorDash had asked to suspend the court proceedings until the approval of a settlement could be reached in a separate class-action case, given the potential for overlap. The company reportedly stands ready and willing to defend legitimate arbitration demands, but maintains it should only be responsible for arbitrating legitimate claims. See more here-- https://bit.ly/39uUehT and https://bit.ly/38qRDWa and https://bit.ly/2OSRQcW

ADR Section Member Survey Due 1/23

The Alternative Dispute Resolution (ADR) Section of The Florida Bar wants to maximize its services and resources for members. As such, I was tasked along with our Executive Council to create a survey in order to take the pulse of our almost one thousand member section a decade into its existence. For those who already belong to the section, you should have received an email from our chair containing the individualized invitation link to take the survey. Please complete this information by January 23, 2020. If you are not a member of the ADR Section, but belong to the Florida Bar, please consider joining now or upon your bar dues renewal this summer. The ADR Section provides a forum for lawyers interested in alternative dispute resolution and for discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. The ADR Section keeps its Florida Bar membership informed and updated regarding legislation, rules and policies in connection with mediation, arbitration and other ADR processes. We also provide quality continuing legal education programs (CLE/CME). The ADR Section also acts as an advocate for attorney mediators in dealing with the Dispute Resolution Center (DRC) and Florida Supreme Court rule changes proposed by the ADR Rules & Policy committee of the court. See more here-- https://bit.ly/36SNAkK and https://bit.ly/2tkQ1Ow

Judge Blocks CA Arb Ban

Today, there's a hearing on a Temporary Restraining Order (TRO) against the State of California where a federal district judge is blocking implementation of the state’s new ban on arbitration of cases involving sexual harassment. The court will hear a request by the California Chamber of Commerce and other business groups for a preliminary injunction. This is a big test that will have national impact. The ban was signed into law in October 2019. It prohibits California employers from requiring employees to waive any right to or opt out of any legal forum or procedure established by the California Fair Employment or Labor Code. The new law applies to contracts for employment entered into, modified or extended on or after January 1, 2020-- the effective date of the new law. If an employer violates the act by forcing arbitration, they would commit a misdemeanor. The National Retail Federation filed suit in federal court seeking to prevent the law from going into effect by arguing the Federal Arbitration Act (FAA) and recent U.S. Supreme Court cases created a federal policy of using arbitration as a legitimate alternative to court litigation. Further, the FAA preempts state law to the contrary. A final ruling regarding primacy of the FAA over state law will serve as a bellwether on employer use of arbitration and may thwart other states from passing similar laws. See more here-- https://bit.ly/2R1oWrz and https://bit.ly/2RafHWa UPDATE: Following oral argument during which recent SCOTUS cases involving the FAA such as Epic Systems and Kindred Nursing were cited, the court requested supplemental briefing regarding the state's suggestion that the court lacks jurisdiction. The TRO will remain in effect until January 31, 2020.