Common Ground - Commercial Mediation

This month, I'm pleased to be featured in The Common Ground publication by the Alternative Dispute Resolution Section of the Florida Bar fall/winter issue. I have written about the the dynamics of mediating commercial litigation cases and the unique and different challenges of this type of mediation. Getting the proper parties to the table and adequate preparation of counsel and client are keys to success. I also explain the nuances of commercial mediation by discussing relationships, strategy, multi-party cases, impasse, mediated settlement agreements, and more. Most disputes result from the breakdown of a relationship. Commercial mediators are often able to ascertain the root of that breakdown. Just as in other types of cases, there are underlying relationship issues and while it is conventional wisdom to try and separate the personal from the business issues, it is often the interpersonal that needs to be overcome to get to a satisfactory resolution. For commercial litigation, the atmosphere at mediation should be more like negotiating a complex business deal than making closing arguments. Competitors may even end up becoming partners at the end. See the article along with the entire issue here-- bit.ly/ADR_FW23_CG

SCOTUS to decide Coinbase Arbitrability

Last week, the U.S. Supreme Court granted cert and agreed to hear a cryptocurrency case that would move a dispute with users of a cryptocurrency exchange out of courts and into private arbitration. At issue is whether upon creating their Coinbase accounts, users agreed to resolve disputes through arbitration. A subsequent agreement related to a Dogecoin sweepstakes stipulated that any issues related to the contest must be addressed in state court. Users later accused Coinbase of violating California’s false advertising law by luring them into a sweepstakes offering Dogecoin prizes so they brought a class-action lawsuit in federal court. A federal district judge in California refused Coinbase's request to enforce arbitration, as the company argued its user agreements required. The Ninth Circuit Court of Appeals affirmed the trial judge's decision. In a related dispute last summer, the U.S. Supreme Court ruled 5-4 in favor of Coinbase. In that case, the justices supported Coinbase’s request to suspend customer lawsuits while seeking appeals to move disputes from courts to private arbitration. The review of the current case will likely impact the current status of arbitrability decisions by courts verus arbitrators and the utilization of arbitration clauses and enforcement of user agreements, especially in digital currency trading. When parties enter into successive contracts, and the first contains an arbitration agreement with a delegation clause but the second does not, who decides whether the first contract’s arbitration agreement governs any later disputes? This may finally resolve a regional circuit split. See more here-- https://tinyurl.com/ycy8xr67 and https://tinyurl.com/32s87z6t and https://tinyurl.com/2z57nbez

Mediation Week 2023 Mixers

The American Bar Association recognizes the third week in October as Mediation Week to educate the public about mediation. During Mediation Week, the ABA encourages all to recognize the importance of the work of neutrals, advocates, and policy makers and celebrate the strides we have made in institutionalizing mediation as a dispute resolution process. October 15-21, 2023 is Mediation Week in Florida under a proclamation of the Supreme Court of Florida. Mediation has been used by Florida courts for more than 30 years. Online Dispute Resolution now serves as an official option following the pandemic through sessions conducted with readily available remote attendance technology. Florida's Dispute Resolution Center continues to require specific standards set by the Florida Supreme Court in the areas of county, family, circuit, dependency, and appellate mediation during these virtual sessions. Mediation week brings annual focus on our dispute resolution work and highlights how individuals, administrative agencies, and businesses can use mediation to develop efficient and customized solutions to conflicts. Next week there are several mixers around the state hosted by members of the Alternative Dispute Resolution Section of The Florida Bar. We enjoy camraderie and hope to see you there! See more here-- https://flabaradr.com/mediation-mixers

Now Available as AAA Panelist

Orlando Mediator Lawrence Kolin is now available as a panel neutral for the American Arbitration Asoociation (AAA). Though Lawrence was a party-selected AAA arbitrator and mediator in the past, and has even presented educational programs in conjunction with AAA, he has officially become a member for purposes of resolving cases under the auspices of AAA. As a reminder, Mediation is used to resolve a broad range of conflicts within a variety of settings. Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Mediation agreements may be included as part of a contract that specifies what procedures will govern the mediation process. Alternatively, parties frequently agree to mediate following the onset of a dispute regardless of whether their contract stipulates mediation as a means of resolution, or when there is no contract between the parties. Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired. See more here-- https://tinyurl.com/bdzj99bw

Join us for AI in Mediation 9/7 at noon!

We'll be giving a free CLE/CME online September 7th at noon in conjunction with the University of Florida Levin College of Law Institute for Dispute Resolution looking at the current state of artificial intelligence as used by legal professionals. We will also discuss the reaction AI is garnering and how it is not necessarily all good or all bad news for the 3,000 plus-year-old tradition of mediation. Mediation is almost as old as conflict itself. The best mediators can resolve disputes discreetly, effectively, and, most importantly, with fairness to both parties, but there is no doubt AI is a negotiation-changing and career-changing tool in the law. Along with my colleague at UWWM, mediator Michelle Jernigan, with whom I serve as Emertius Member of The Florida Bar ADR Section Executive Council and our guests Christy Foley and Christina Magee (current and former chairs of the ADR Section), we also survey the pros and cons of AI in the legal field and ethical issues associated with the use of AI. Panel members will draw conclusions and make recommendations based on their research and personal experience. The Florida Bar has accredited the Webinar 1.0 hours of Technology Continuing Legal Education (CLE). You may submit questions in advance and register here-- https://register.gotowebinar.com/register/3125289667036333659 Replay available here-- https://www.youtube.com/watch?v=UYjgRL4UUA8

MDFL Seeks Comment on Mediation Rules

The U.S. District Court for the Middle District of Florida has put forth local rule amendments for comment including Mediation. The federal court proposal requires the attendance in-person unless otherwise ordered by the judge or agreed by the mediator — of lead counsel, the parties or a party’s surrogate satisfactory to the mediator, and any necessary insurance carrier representative. This default has been a feature of other courts' rules in recent times since Covid has mostly waned, though many have made the exception to be through stipulation or agreement by the parties, not the mediator. By way of example, the Florida Rule of Civil Procedure 1.700 now states that mediation must be conducted in person, unless the referral order directs, the state court or party moves, or the parties stipulate othewise and also permits a combination of in-person and use of commuication technology. The federal court seeks comment on this change and these can be submitted by by mailing them to Elizabeth Warren, Clerk of Court, Attention: Local Rules Comments, 401 W. Central Blvd, Ste. 2100, Orlando, FL 32801-0201 or submitting through a link here-- https://www.flmd.uscourts.gov/webforms/comment-proposed-amendments-local-rules All comments must be received by 5:00 p.m. EST on August 21, 2023. See the proposed amendments linked to public notice posted here-- https://www.flmd.uscourts.gov/announcements/public-notice-and-opportunity-comment-proposed-amendments-local-rules

SCOTUS Stays Cases during Arb Appeals

The U.S. Supreme Court held last week that non-final appeals on arbitrability would stay litigation automatically while decided. This case arose from a class action between the cryptocurrency platform Coinbase and its users. The terms and conditions of the site required users to submit disputes to mandatory arbitration. The named plaintiff sued in federal court, arguing that the arbitration agreement was unenforceable. When the district court agreed, Coinbase appealed that decision to the Ninth Circuit seeking an interlocutory order that would stay the lawsuit until the appeal on arbitration could be heard. In conflict with decisions from other federal appellate courts, the Ninth Circuit rejected that position. In a 5-4 decision, the Supreme Court reversed the Ninth Circuit, finding a right to an interlocutory appeal of a decision not to enforce a mandatory arbitration agreement. The Court noted requiring cases to proceed to trial before hearing such appeals would defeat the purpose of using arbitration in the first place. As a result, an appeal of a district court’s decision to invalidate or enforce and arbitration agreement will be given an automatic stay of the matter pending the appeal. The Court opined it makes sense that absent an automatic stay of district court proceedings, Congress’s decision to afford a right to an interlocutory appeal in Section 16 of the Federal Arbitration Act (FAA) would be largely nullified. Beyond this reasoning, the majority also noted the purposes of arbitration and explained that automatic stays will preserve those objectives of efficiency, reduced litigation cost, and reduced discovery burdens on the parties. See more on Case No. 22-105 here-- https://tinyurl.com/546zn456 and https://tinyurl.com/2r5snu79

Comments Sought for Non-Binding Arb Changes

The Supreme Court of Florida governed Florida Dispute Resolution Center (DRC) Committee on Alternative Dispute Resolution (ADR) Rules and Policy has put forth proposals in Case No. SC2023-0810. The court is now considering amendments to Florida Rule of Civil Procedure 1.820 (Hearing Procedures for Non-Binding Arbitration) that would provide a non-exclusive list of factors for a judge to consider when deciding whether to refer a contested civil action to non-binding arbitration. The amendments would also provide minimum hearing procedures that must be included in an order of referral to non-binding arbitration, absent agreement of the parties, among other things. The court has placed the proposals online and any comments should be filed with the Florida Supreme Court on or before July 31, 2023. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal. If filed by a nonlawyer or a lawyer not licensed to practice, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927 See more here-- https://www.floridasupremecourt.org/Case-Information/Rules-Cases-Proposed-Amendments and https://acis.flcourts.gov/portal/search/case

My Pillow CEO Faces Confirmation of Award

MyPillow CEO Mike Lindell offered to pay $5 million to anyone who could debunk his evidence of interference in the 2020 presidential election. A vocal supporter of the former President, Lindell believed that the 2020 election was stolen, and that he had the evidence to prove it. There was a catch, however, as Lindell required that any such claims be submitted to an arbitrator, and the terms were written quite narrowly–but perhaps not narrowly enough. A computer forensics expert who had apparently voted for Trump twice, took Lindell up on his challenge. He analyzed the supposed evidence and demonstrated there was nothing of any sort of election interference. Lindell's terms required that he show the data had nothing to do with the 2020 presidential election. When Lindell refused to pay, the matter went to arbitration. There, despite Lindell having written the terms to make recovery difficult, the arbitrators sided with the forensic expert, Robert Zeidman, who has now filed in federal court. According to Case Western Reserve University School of Law Professor Jonathan Adler, Lindell may not have learned much about election administration through these travails, but it appears he is about to learn something about the enforceability of arbitration awards. Reportedly, Lindell is also facing multiple defamation suits from Dominion Voting Systems and former Dominion executives, and has been hit with legal sanctions for frivolous legal claims. See more here-- https://tinyurl.com/s4vr4rd2

3M CEO Required at Mediation

A Florida federal judge has ordered 3M CEO Michael Roman to attend mediation to resolve some 260,000 lawsuits alleging its military earplugs caused hearing loss. The judge wants the executive present so that he may "listen and engage directly with the mediators." Reportedly, mediation so far has been "encouraging," but requires 3M senior leadership to push ahead per the judge's order. Attendance of the CEO will ensure that 3M's board will have "firsthand knowledge of the current state of the negotiations" when evaluating any settlement offer. The lawsuits brought by veterans and members of the military allege that 3M's combat arms earplugs were defective. The company utilized bankruptcy of its subsidiary Aearo Technologies LLC, which manufactured the earplugs to try resolving the cases. 3M had opposed efforts to renew global mediation efforts in Florida federal court while Aearo's bankruptcy case is pending. 3M states it continues to believe that Aearo's bankruptcy provides a better option for resolving the earplug claims "more quickly, with more certainty and with more balanced recoveries among claimants." Aearo's bankruptcy strategy has been fiercely opposed by plaintiffs, who said that 3M was merely trying to escape litigation in Florida, following a series of unfavorable legal rulings and trial losses. See story here-- https://money.usnews.com/investing/news/articles/2023-05-22/3m-ceo-must-attend-mediation-in-earplug-litigation-judge-rules

ADR Rules and Policy Needs You!

The Supreme Court of Florida governed Florida Dispute Resolution Center (DRC) Committee on Alternative Dispute Resolution (ADR) Rules and Policy is currently accepting applications for six member appointments to the Committee on ADR Rules and Policy. The Committee on ADR Rules and Policy provides the Supreme Court with recommendations relating to ADR legislation, and all aspects of ADR policy and rules including, but not limited to, ADR practices, mediator certification and renewal requirements, continuing education requirements, and mediation training program requirements. All seats are three year terms that commence on July 1, 2023. Of the appointments, two appointees must be non-lawyer mediators who have been Florida Supreme Court certified for more than five years. The remaining four appointees may be either lawyer mediators or non-lawyer mediators who have been Florida Supreme Court certified for more than five years. All mediator appointees must be Florida Supreme Court certified mediators. All lawyer appointees must be members in good standing of The Florida Bar and have practiced law for a minimum of five years and conducted or attended 15 mediations. Appointments will be made by the Chief Justice of the Supreme Court of Florida. Please see AOSC20-59PDF Download for more information. To be considered for appointment, please submit a letter of interest and current résumé on or before April 25, 2023, to: Florida Dispute Resolution Center Supreme Court Building 500 S. Duval Street Tallahassee, Florida 32399 Fax: (850) 922-9290 mail: DRCmail@flcourts.org

Fox Settlement Shows Remote Mediation Works

Since the advent of the virtual mediation essentially with the rise of remote attendance resulting from the pandemic, lawyers seem skeptical of the effectiveness of this mediation technique. This skepticism persists, even after many polls of over a thousand full-time neutrals revealed that settlement rates remain as before largely the same as in-person cases. As evidenced by employing a mediator colleague of mine from the National Academy of Distinguished Neutrals (NADN.org) floating down the Danube during a high-stakes, eve of trial negotiation in a high profile case with results certain to be impactful, it is possible to achieve resolution by remote attendance. This method is pretty much the default in the state of Florida and around the country and is usually possible despite standing orders that may not specify so in the name of self-determination with agreement of the parties. People are now facile with off the shelf technology like Zoom and are quite used to interacting with others in this medium. Likewise, mediators using this space are in their third year of building rapport without actually being there, not counting prior experience with telephone negotiation, etc. (also used here among as many as 50 calls and was always an option before Covid). Don't underestimate the ability to get things done in short order without sitting down at the same table. But if you must, we still do that too! See more here-- https://tinyurl.com/tfj4bttt and https://tinyurl.com/ybp3zy5j

Non-binding Arb Rule Comments due 5/2!

The Civil Rules Standing Committee of The Florida Bar is proposing changes to Florida Rule of Civil Procedure 1.820 regarding hearing procedures for Non-Binding Arbitration. This informal and expeditious Alternative Dispute Resolution process is being utilized more and more to clear dockets backlogged from Covid, Hurricanes and general lack of trial dates. Judges in many Florida Circuit Courts are referring cases to this process and so some changes are being put out for comment. Among the changes are serving the award on the parties rather than filing with the court under seal. This is likely because many of our 67 counties have no pull down menu for filing under seal and can lead to awards being seen inadvertently by the judicial officer presiding over the case. Another change contemplates maintaining the original exhibits through the end of the case. I'm not sure arbitrators want to become deputy court clerks warehousing records, but parties can agree to do it themselves. Interested persons should send comments to: midavis@floridabar.org before May 2, 2023. See more here-- https://tinyurl.com/58j7xa4t

Arb Going Back To Cali

The U.S. Court of Appeals for the Ninth Circuit recently blocked a California law that prohibited employers from requiring their workers to resolve legal disputes in private arbitration, ruling that it conflicts with federal law. A panel affirmed the district court’s grant of a preliminary injunction barring enforcement of California’s Assembly Bill (AB) 51 with respect to arbitration agreements governed by the Federal Arbitration Act (FAA). Since 2020, California was first to ban mandatory arbitration of all employment-related disputes in the wake of the #MeToo movement. New York and New Jersey similarly passed laws prohibiting mandatory arbitration of sexual harassment and discrimination claims, but California's statute was much broader. Employers were prohibited from requiring individuals to sign as a condition of employment or employment-related benefits arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act or Labor Code. In affirming the district court’s grant of a preliminary injunction, a majority of the Ninth Circuit panel used U.S. Supreme Court precedent that states rules burdening the formation of arbitration agreements are an obstacle to legislative intent of and preempted by the FAA. The court also noted the U.S. Court of Appeals for the First and Fourth Circuits reached similar conclusions when confronted with state laws that attempted to prevent parties from entering arbitration agreements. The court rejected arguments from the State of California that it should sever clauses that were deemed preempted by the FAA and leave the remainder of the law intact. The court found AB 51 could not be dissected as the statute’s provisions all work together to burden the formation of arbitration agreements and there was no authority in the legislation to sever the penalty portions of the law. If the State of California does not get a rehearing en banc or pursue further appeal, the matter will return to the district court to proceed for a final determination on the legality of AB 51. See reporting here-- https://bit.ly/3ZtxpoU and https://tinyurl.com/mvvfn6um and latest decision here-- https://tinyurl.com/54u4jukp

Valentine's date? Arb Forum 2/14

Join us for the Alternative Dispute Resolution (ADR) Section of the Florida Bar's next Arbitrator's Forum on February 14, 2023 at 8 am EST live on Zoom. Invite a fellow arbitrator or litigator to this complimentary event on Valentine's Day as we speak to statewide practitioners about their preferences and practices. This month, we will discuss “What Arbitrators Need To Know About Remedies, Attorney's Fees, Punitive Damages, and More!” The Florida Bar ADR Section's standing Arbitration Committee instituted the forum series last year to create a community of better informed arbitration neutrals in our state. We listen and learn from each other by talking through common arbitration challenges and how they might be better resolved. Our discussion is frank and encourages participation by all. Please also consider becoming an official ADR Section member as lawyers from those practice areas dealing with arbitration join their full-time neutrals colleagues to discuss what works, what confounds, and how to improve skills in this growing field. See more here-- bit.ly/ADR_ArbForum_6

Orlando Mediator Top 5 Dispute Resolution Blog

Happy New Year! My little old legal blog, now a dozen years online, again received the honor of being named among the top five Alternative Dispute Resolution blogs out of thousands of blogs on the web ranked by traffic, social media followers, domain authority and freshness. I'm certainly in some good company with top dispute resolution blogs around the world that actually have staff. Orlando Mediator is recognized by Feedspot among the best, including such distinguished blogs published by big names like Thompson Reuters, Harvard Program on Negotiation and Kluwer. Feedspot's experts chose Orlando Mediator as number five in the world for what their founder calls the most comprehensive list of Top 20 Dispute Resolution Blogs on the planet! Feedspot says it is the internet’s largest human curated database of bloggers and podcasts. Their list combines RSS feeds allowing users to keep track of many different websites in a single news aggregator. I am humbled to know this labor of love for my chosen field is appreciated. I do enjoy keeping everyone informed on the latest trends and happenings in mediation and related fields through this outlet. Thanks for your readership and support over the years! The full list is available here-- https://blog.feedspot.com/dispute_resolution_blogs/