Fla. S. Ct. Extends Previous Covid Mediator Measures

The Supreme Court of Florida issued an Administrative Order (AO) relating to several Alternative Dispute Resolution (ADR) items that continue addressing operational issues from the pandemic and allowing for things like mediation training by remote electronic means. The order extends a limited number of provisions that were first authorized in April 2020 and December 2020 due to the impact of COVID-19 on the judicial system. Highlights of the order include suspending the Rules for Certified and Court-Appointed Mediators by eliminating the required points for mentorship activities through June 30, 2022. According to the Dispute Resolution Center which just advised of this new order, there are few important items to note in the AO: mentoring activities may still be needed for applicants to reach the required points for mediator certification (except for county); extending the ability of parenting coordination training to be conducted online through December 31, 2022; and waiving certain disciplinary requirements for certified mediators and qualified parenting coordinators. See more in AOSC20-24 Amendment 2 here-- https://bit.ly/3qgLaar

Mediator Rules Comments Due 1/1

The Committee on Alternative Dispute Resolution Rules and Policy has undertaken the revision of Part I, Mediator Qualifications, and Part II, Standards of Professional Conduct, of the Rules for Certified and Court-Appointed Mediators. Committee members are seeking feedback on the revisions at the link below on Amendments to Rules for Certified and Court-Appointed Mediators. Most involve the certification criteria, but other proposed changes include enhancements to impartiality, conflicts and social networking. Confidentiality of the caucus is also addressed in that with the express consent of the parties and counsel, a mediator may establish as a ground rule for the mediation that information disclosed during caucus may be disclosed to the other mediation participants unless a party expressly tells the mediator to keep the information confidential. Additionally, regarding reporting mediation outcomes to courts, mediators must not include comments reflecting a mediator's opinions regarding whether a party or counsel mediated in "good faith" as sometimes seen in referral orders. Send any comments to the Dispute Resolution Center by email to DRCmail@flcourts.org, on or before January 1, 2022. See more here-- https://bit.ly/3EPGfD5

Mediation Week 2021

October 17-23 is officially Mediation Week in Florida and elsewhere, marking the importance of dispute resolution as an effective substitute to litigation and the fact that mediation has continued virtually during the pandemic, allowing parties to resolve disputes without resorting to litigation in a system of very backed-up court dockets. Alternative Dispute Resolution (ADR) has been used by Florida courts for more than 30 years. I have been mediating lawsuits for over 20 years now and this past year and a half was the most seismic shift in our profession and the legal profession in general. Online Dispute Resolution (ODR) will now continue as an option following the pandemic through confidential sessions conducted remotely with widely available commerical off-the-shelf technology. More than 5,500 mediators are currently certified by the Florida Dispute Resolution Center. These professionals meet specific standards set by the Florida Supreme Court in the areas of county, family, circuit, dependency, and appellate mediation. In most cases, discerning counsel and their client parties select the mediator. However, a mediator may be appointed by the court when litigants are unable to select their own. Mediation week brings annual focus on ADR work and highlights how individuals, administrative agencies, and businesses can use mediation to develop efficient and customized solutions to conflicts. See more here-- https://bit.ly/3AU5XUt

Certified Mediator Procedures Change

A new operating procedures policy was issued today by the Florida Dispute Resolution Center (DRC). Pursuant to rule 10.140, Rules for Certified and Court-Appointed Mediators, Operating Procedures and Authority, the Committee on Alternative Dispute Resolution Rules and Policy, new procedures are effective November 1, 2021, and supersede any conflicting provisions. Numerous revisions to the certification and renewal processes include:

The 50% continuing mediator education (CME) live format requirement has been rescinded. - Mediators will only be required to complete 16 hours of CME regardless of how many certifications are held. - Mediators may begin earning CME hours for next cycle upon submission their renewal for previous cycle. - Inactive status allows a mediator’s certification to remain inactive for up to five years. - Lapsed certifications are eligible to renew their certifications up to a maximum of five years.

See more here-- https://bit.ly/3FTcRgq

ADR Section Supports ODR

The Florida Supreme Court last month extended the public comment deadline on a rules petition designed to promote greater use of remote technology or online dispute resolution (ODR) in court proceedings, including mediation. Specifically, the COVID-19 Workgroup’s proposed rules changes begin with Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology. The Alternative Dispute Resolution (ADR) Section's Executive Council has now filed a comment on behalf of its members in support of the continued use of remote technology. This was done after surveying members about personal experiences with remote proceedings over the past eighteen months of the coronavirus pandemic and their opinions regarding the proposed rules changes. The Florida Bar ADR Section favors enhancing the dispute resolution process through modernization while also increasing efficiency and lowering costs for the participants. It appears the Proposed Rules will assist to meet that goal, and as such the ADR Section supports the Workgroup proposed changes to Rules 1.700, 1.720, 1.730, 1.750, 9.700, 9.720, and 9.740 with the changes suggested through an official comment filed. The use of communication technology and remote participation at mediation and arbitration provides ready access to these proceedings by adding an additional means to attend and often lowers barriers to participation. Scheduling is easier when travel time is eliminated. The cost of attending is less when there are no lodging and parking costs either. Any early concerns as to communication technology and security have been addressed to the satisfaction of most practitioners and participants. The ADR Section also anticipates that these systems will continue to evolve and improve over time. See more here-- https://bit.ly/2V1hGll

Comments on Remote Rule Changes Due 9/30

The Supreme Court of Florida is extending a public comment period for a rules petition submitted by its COVID-19 Workgroup that is designed to promote greater use of tech due to courts, counsel and parties having experienced great efficiency during the pandemic. Changes to Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology, also impact six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure. The amendments focus on ways to permit virtual proceedings under many circumstances, including mediation. The so-called Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 found Court and Bar leaders embraced remote technology to navigate the COVID-19 pandemic. After months of deliberation, the members determined that permanent, broader authorization for the remote conduct of court proceedings after the pandemic was warranted based on the positive outcomes and efficiencies being observed during the pandemic. The Workgroup noted significant cost and time savings for litigants, lawyers and other stakeholders, while recognizing that remote proceedings are not appropriate in all circumstances. The proposed amendments to Rule 2.530 still require a court official to consider any objections to the use of remote technology and to ultimately approve all use of communication technology. Chief Judge Munyon of Orlando who chairs the effort said remote mediations are here to stay, along with remote hearings and depositions. “Whether a particular hearing is so complex that it needs to be in person, or the evidence is such that it needs to be in person, will be treated on a case-by-case basis,” she said as reported by The Florida Bar News. This morning, the Executive Council of ADR Section of The Florida Bar contemplated filing a comment in support of the continued use of remote mediation attendance which has proved quite effective in the past eighteen months. See more here-- https://bit.ly/2V1hGll and https://bit.ly/3yL2syZ

Mediate First

Be careful not to jump the gun into arbitration when a contract requires other alternative dispute resolution processes as conditions precedent. An appellate court in Texas affirmed the vacatur of an arbitration award because mediation was a condition precedent to arbitration under the governing contract and was not satisfied or waived by the parties prior to arbitration. In affirming the vacatur, the court held that the dispute was never properly before the arbitrator and therefore exceeded his powers in issuing the award. Sometimes an arbitrator in a private arbitration is not given a copy of the entire contract upon being selected. This needs to happen early and counsel should ensure they are on the same page procedurally in order to avoid an expensive and wasted outcome. The agreement at issue essentially stated any controversy shall be resolved by mediation, and if such mediation is unable to resolve it, then exclusively by binding arbitration. The court reasoned that the controversy was not properly before the arbitrator unless and until the parties mediated. There was no sympathy to the appellant’s repeated attempts to mediate with appellees prior to arbitration and the court held ignoring such demands was not inaction or a waiver of the right to mediate. See more here-- https://bit.ly/3A3PRI9 and https://bit.ly/3jelAiL

Mediator Testimony?

A recent query to the Florida Mediator Ethics Advisory Council (MEAC) invovled a federal court outside the state contacting the mediator regarding a post mediation status conference. Apparently, the parties gave different accounts of what occurred and the mediator was called for an opinion of the veracity of such irreconcilable statements. The mediator informed the court it would concern knowledge learned through confidential and privileged mediation communications and refused to provide same (the mediation was conducted pursuant to Florida rules and statutes). Thereafter, the mediator was ordered to "answer the question of whether plaintiff made a demand and whether the defendants made any counteroffer during the mediation, but not disclose any specific statements of the parties or the substance of their positions." MEAC advised that a mediator should not voluntarily testify in court regarding information learned in court unless confidentiality is waived by the parties or such communications fall within the exceptions listed in Chapter 44, Florida Statutes. Because this was not truly a Florida case and outside its jurisdiction, MEAC merely reaffirmed previous positions that a mediator should not voluntarily testify in court regarding information learned in mediation unless the parties waive confidentiality, or the communications fall within the exceptions found in Section 44.405, Florida Statutes. If a court issues an order for the mediator to testify, the mediator should either file a protective order or notify the judge that the mediator is statutorily required to maintain confidentiality of mediation communications. Interestingly, a Florida court decision published this month by the Fifth District Court of Appeal opining a motion to reform a mediated settlement agreement adequately alleging a claim for relief based on mutual mistake must be resolved by evidentiary hearing mentions in a footnote that a mediator would be permitted to provide testimony for the limited purpose of establishing or refuting legally recognized grounds for reforming a settlement agreement reached during a mediation pursuant to Section 44.405(4)(a)5, Florida Statutes. See more in MEAC Opinion 2021-005 and 5th DCA Case No. 5D21-316 https://bit.ly/2ZX0IUk

No Prime Day For Amazon and Arbitration

The U.S. Supreme Court decided today not to consider whether drivers for Amazon’s Flex delivery service are interstate transportation workers who can avoid arbitration as part of a proposed class claim. Amazon.com Inc. had urged the high Court to review a federal appellate decision allowing a Flex driver to avoid arbitrating proposed class claims that he and others are misclassified as independent contractors because they’re interstate transportation workers exempt from the Federal Arbitration Act (FAA). The First Circuit Court of Appeals held last summer that those workers making local deliveries to Amazon customers qualify for the FAA exemption, even though they don’t cross state lines, because their work involves transporting goods in the flow of interstate commerce. Flex drivers, therefore, aren’t bound by arbitration agreements that would prevent them from litigating their state law wage claims. In recent years, Amazon used independent contractors to deliver goods through its Flex smartphone app. Flex contractors could sign up for shifts and use their own car while adhering to Amazon’s standards to deliver packages. However, if a contractor takes longer than their shift to complete their deliveries, they are not compensated for extra time, nor reimbursed for gas, vehicle maintenance, or cell phone data costs for the job. Working with Flex, an individual agrees to its terms of service, which requires settling disputes through arbitration governed by the FAA. Interestingly, earlier this month, the company changed its terms allowing people to bring individual or class action lawsuits against it. Amazon made the change in response to more than 75,000 pending arbitration demands on behalf of its Echo device users that would have required it to ante up tens of millions of dollars in filing fees in those cases. It now faces several class actions, including one alleging that it improperly recorded and preserved conversations through its Echo Dot Kids devices. See more here-- https://bit.ly/3vRYhzW and https://bit.ly/3qgc95x and https://bit.ly/2SKw54w

Center Square

I finally got my childhood dream to be on a form of Hollywood Squares and as the center square, no less! The Orange County Bar Association's Intellectual Property Committee invited me to participate in its Zoom version of the venerable TV game show and I'm sure the ghost of Paul Lynde was watching. We focused on the topic of trademark clearance with the determination for each team being whether or not the mark contested was infringing. Likelihood of confusion factors we used come from the analysis first seen two decades ago in the Frehling case which considered the following: 1. Type of mark 2. Similarity of mark 3. Similarity of the products the marks represent 4. Similarity of the parties' retail outlets (trade channels) and customers 5. Similarity of advertising media 6. Defendant's intent 7. Actual confusion We had local trademark practitioners from prominent firms who practice IP in Orlando, both as panelists in the squares and on teams of X's and O's. Some cases were pretty close on the question of infringement leading to an exciting game of tic tac toe. This format was inspired by the past year of essentially living on Zoom in the little squares remniscent of this cheesy 1970s game show and such shows as The Brady Bunch. Thanks to Josh Brown for conceiving of this CLE!

Celebrating 20 years as Mediator!

This month marks my 20th year as a Florida Supreme Court Certified Circuit Civil Mediator, an Appellate mediator (since the 2001 pilot program with our 5th DCA) and a federal district court mediator. Back in the day, you had to be a Florida lawyer for five years before even becoming certified (much like a judge). I fondly recall my training with former judge David Strawn, a pioneer in the field of mediation. I am still in touch with my mediation training classmates, some of whom are also mediating full-time and even one who took the bench and now serves our business court division in Orange County. Through the years, this field of law has evolved and some rules have changed, but by and large the basics are the same, proving that a 3,000 year-old tradition of dispute resolution has a place as a means of diposing of cases in the modern court system. This year in particular has been a seismic shift in our technique due to the immediate need for a solution to continue mediating lawsuits during a pandemic. Zoom and other existing commercial online platforms became a lifesaver for most practicing lawyers and mediators. Courts seem destined to continue using technology for online hearings and my colleagues anticipate scheduling of virtual mediations well beyond the Covid-19 crisis. A massive backlog of cases has ensued requiring even more dispute resolution. Our profession as attorney-mediators has never been more strongly represented than by the Florida Bar ADR Section which is now over a decade old. At the time of section formation in 2010, I also founded the Orange County Bar Association ADR Committee to deal with local issues in dispute resolution. The discourse among the members of both organizations has never been higher with committed practitioners engaged in changing the role of neutrals for the better. While I look forward to continued advances in online dispute resolution-- which does enjoy a high success rate in producing settlements-- I also long for a return of good old-fashioned face-to-face negotiation! Schedule with me here-- https://www.uww-adr.com/biography/lawrence-h-kolin

Active Case Management Comes to FL 9th Circuit

At today's Judicial Town Hall meeting held by Chief Judge Myers, the Ninth Judicial Circuit of Florida rolled out a new Administrative Order implementing a much more active case management rubric than this jurisdiction has ever known. Counsel will now be required to designate at the outset whether a civil case in county or circuit court is on a complex (per civil rule), streamlined (12 months), or general (18 months) track. Much like federal court, with track designation the court will then issue a Standing Case Management Order imposing deadlines intended to move the case to conclusion under prescribed timelines based on its type. The active case management program will not apply to cases assigned to: (a) Business Court; (b) any civil case designated as complex under Florida Rule of Civil Procedure 1.201; and (c) any civil cases filed on or before April 29, 2021. Existing cases in which the court has entered an order setting the case for pre-trial and/or trial will keep the dates and deadlines already set forth therein which shall govern the progress of those cases. With regard to dispute resolution, within 30 days after completion of the depositions of all parties, counsel shall meet and confer regarding whether an Early Mediation would be productive to resolution of certain issues or the entire case. A so-called Final Mediation shall occur no later than 30 days after completion of all discovery. The new program requires a plaintiff filing a case to include a standard case management plan with the complaint. Until a case management plan is filed by the plaintiff initiating a case, the Clerk will not issue a summons. See more in A.O. 2021-4 here-- https://www.ninthcircuit.org/sites/default/files/AO2021-04.pdf and forms found here-- https://www.ninthcircuit.org/civil-case-management

FL S. Ct. ADR & MEAC Vacancies

For those inclined to stay up on the very latest in our profession, the Florida Dispute Resolution Center (DRC) is currently accepting applications for six member appointments to the Florida Supreme Court's Alternative Dispute Resolution (ADR) Rules and Policy Committee. The committee provides the 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. 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. Terms are staggered and no member shall serve more than nine years. Additionally, the Mediator Ethics Advisory Committee (MEAC) is a nine member body that issues written advisory ethics opinions for mediators subject to the Florida Rules for Certified and Court-Appointed Mediators. MEAC is accepting applications for three vacancies of four year terms as follows: One certified mediator from the Northern Division encompassing the First, Second, Third, Eighth and Fourteenth judicial circuits; One certified mediator from the Central Division encompassing the Fifth, Seventh, Ninth, Tenth, Eighteenth and Nineteenth judicial circuits; and One certified mediator from the Southwest encompassing the Sixth, Twelfth, Thirteenth, and Twentieth judicial circuits. Applicants shall not also serve on the Mediator Qualifications and Discipline Review Board. These 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. If interested in serving on either committee, a letter of interest with current résumé should be submitted by April 15, 2021 to DRCmail@flcourts.org

 

Final loss for FL in Water War with GA

Because of the rare use of special masters by the U.S. Supreme Court, this blog has followed the FL-GA Water Wars for years. Now, because this was always a case of original jurisdiction, SCOTUS unanimously rejected Florida's exceptions taken and dismissed the case, essentially finding for GA. This comes even after rejecting a now deceased special master's ruling in favor of Florida and remanding to a new special master to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia. The second master's recommendation was not to grant Florida’s request for a decree equitably apportioning the waters of the Apalachicola-Chattahoochee-Flint River Basin. The master found the evidence did not show harm to Florida caused by Georgia and that Georgia’s water use is reasonable. Additionally, the evidence did not show that the benefits of apportionment would substantially outweigh the potential harms. Florida asserted the first Special Master found that Georgia’s upstream water use was unreasonable and that the Supreme Court already rejected an additional finding that nothing could be done because the U.S. Army Corps of Engineers (which manages the reservoirs in the river system) was not a party to the case. Florida sought a cap to alleviate past damage allegedly caused by Georgia. Georgia maintained any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry. Florida wanted to limit Georgia’s water consumption from the basin, including Lake Lanier, to 1992 levels and to get reparations for economic and environmental harm to Apalachicola's oyster fisheries from drought. Georgia claimed Florida failed to prove harm to aquatic species and the high court yesterday agreed. The opinion finding Florida has not met the exacting standard necessary to warrant the exercise of this Court’s extraordinary authority to control the conduct of a coequal sovereign was authored by Justice Barrett and can be found here- https://www.supremecourt.gov/opinions/20pdf/22o142_m648.pdf

Still Zooming A Year Later!

Despite Coronavirus severely curtailing the practice of law in courthouses across the country, lawyers found success settling cases over the past year using readily available technology. Our firm has since conducted some 3,500 mediations by Zoom, GoToMeeting, Microsoft Teams and other platforms, as well as good old-fashioned telephone and text. Few barriers to attending mediation exist when using off-the-shelf equipment and simple apps available for download. Though we utilized these methods at times before the COVID-19 pandemic, it was usually due to the unavailability of a party that remote attendance at a mediation conference happened. Because trial dockets across the country remain in disarray (Florida is a million cases behind), mediation of pending cases provides the soonest means of self-determining an outcome. Online Dispute Resolution (ODR) or virtual solutions can be accessed from the comfort and safety of home. As with traditional mediation, online mediation has allowed the mediator to adapt the process to address the particular needs of parties. Caucus is still possible, ensuring confidentiality, end-to-end encryption and the environment required for candor in negotiation. Of course, nothing beats being in person for a read of the room, but I believe remote attendance is here to stay. Participants appreciate reduced costs and less time expended overall in convening the process. Some cases that would have taken all day seem to resolve even faster online. Whether or not a settlement is reached, much is still learned by parties and counsel through the exercise and most cases settle thereafter still! That's not to say that our 3,000 year tradition of face-to-face mediation won't return as we are vaccinated, but ODR can still be effectively employed in many types of cases going forward.

DRC Call for CME Presentations

The Florida Dispute Resolution Center (DRC) is calling for proposals for this summer's annual mediator conference. The conference will be held virtually on August 11 - 13, 2021. If your workshop submission is selected, you may be asked to present twice during the conference. You and your second presenter, if applicable, will receive a conference registration waiver. By submitting a workshop proposal, you agree to allow your presentation to be recorded and agree to submit to the DRC prior to the conference any materials you intend to distribute in conjunction with the conference. The recording and materials will become public records. If you believe copyright or trademark interests exist, you must notify DRC upon submission of your proposal. If no copyright or trademark interests exists when you submit your proposal, all such rights are otherwise waived upon submission of the proposal. Presenters should be familiar with virtual conference software (such as Swoogo, Pathable or Zoom) and have experience presenting their session during a virtual conference. See more info here-- https://bit.ly/2ZX0IUk

Fla. S. Ct. Declines to Adopt New Mediator Rules

Last month, the Supreme Court of Florida quietly rejected a multi-year rules proposal effort by its own ADR Rules & Policy Committee attempting to ensure that the mediation process operates in accordance with mediator rules and standards already adopted. The proposed revisions pertained to the practice and procedures of mediation in the court system and added requirements that those who mediate court connected cases as part of the machinery of the judicial process must observe the existing rules of mediators, regardless of certification. The committee found it inconsistent and illogical to have one group of professionals in the court process who are subject to no ethical standards involving the vitally important mediation service they provide the public. Florida certified court mediators are already obligated to follow rules related to mediation in the court system. However, the court chose to leave existing rules in place such that parties are still free to choose whomever they want (clergy, rabbi, spiritual advisor) to mediate their case without the beneficial boundaries of mediator ethics and a system of enforcement. While 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, the court left it alone with only a dissent from Justice Polston emphasizing the need for instilling public confidence through principled ethical protections in mediation of pending state court cases. See more in Case Number: SC20-565 here-- http://onlinedocketssc.flcourts.org

New MDFL Local Rules Take Effect 2/1/21

After careful deliberation and based on the Lawyer Advisory Committee's report and the public comments, the Board of Judges recently approved revisions to the Middle District of Florida's Local Rules. The revised Local Rules become effective February 1, 2021. Stated goals for this revision are to: modernize and simplify; accommodate changes in national and local practice; eliminate overlap with federal rules and statutes; eliminate references to specific federal rules and statutes; address re-occurring complaints and issues; and accord with best practices. In regard to mediation, Chapter Four of the new rules specifies that:  To refer an action or claim to mediation, the judge must enter an order that: (a) designates the mediator or directs the parties to select a mediator and to notify the judge of the selection;(b ) establishes a mediation deadline; (c) requires a lawyer to confirm a mediation date agreeable to the mediator and the parties and to notify the judge of the date; (d) requires the attendance of lead counsel, the parties or a party’s surrogate satisfactory to the mediator, and any necessary insurance carrier representative;(e) notifies the parties that unexcused absence or departure from mediation is sanctionable; (f) requires the mediator to report within seven days after mediation the result of the mediation and whether all required persons attended; and (g) directs that the substance of the mediation is confidential and that no party, lawyer, or other participant is bound by, may record, or without the judge’s approval may disclose any event, including any statement confirming or denying a fact — except settlement — that occurs during the mediation. See more here- https://bit.ly/2YctX4u

Happy Zoom Year! Join Us 1/22/21!

Please join us later this month for the first program of our webinar series this year in conjunction with the University of Florida Institute for Dispute Resolution. Along with my longtime colleague and fellow mediator and arbitrator at our mediation firm, Michelle Jernigan, I'll go through current dispute resolution options in Florida as reopening of the courts remains uncertain until Covid-19 no longer presents a significant risk to public health and safety. Meanwhile, mediation, arbitration, nonbinding arbitration and early neutral evaluation are proving to be as effective online as they were in person. Which means of resolution fits the particular fuss? We'll discuss the features of each form of ADR. Join us for this free Webinar, scheduled for Noon on Friday, January 22, 2021, and you'll be eligible for one general CLE credit from The Florida Bar and self-reported CME to the Dispute Resolution Center. Please register here today-- https://register.gotowebinar.com/register/4952883580082820875