Celebrating 25 Years of Mediating!

Hard to believe this month marks my 25th year serving lawyers and litigants as a Florida Supreme Court Certified Circuit Civil Mediator, an Appellate mediator (since the 2001 pilot program with our 5th DCA) and as a federal district court mediator. Back in the day, you had to be a Florida lawyer for at least five years before even becoming certified (much like a judge). I fondly recall my excellent 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 one who took the bench and presided over our business court in Orange County. Through the years, this special field in the law has evolved and some rules have changed, but by and large the basics are the same, proving that our 3,000 year-old tradition of human dispute resolution still very much has a place as really the principal means to dipose of cases in the modern court system. Even with the seismic shift in our technique due to mediating lawsuits mostly online since the pandemic, online platforms are now second nature to judicial officers, practicing lawyers, parties and mediators. Courts continue using technology for online hearings, even though some are requiring physical attendance. This profession of attorney-mediators is now strongly represented by the Florida Bar ADR Section that has supported practitioners of mediation and arbitration for over fifteen years. At the time of state 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 members of both organizations has never been higher, with committed practitioners engaged in changing the role of neutrals for the better through training and rules commentary. While I look forward to continued advances in online dispute resolution-- which does enjoy just as high a success rate in producing settlements-- I also enjoy good old-fashioned face-to-face negotiation! Schedule with me to settle something online or in person here-- https://www.nadn.org/lawrence-kolin

Spotify Payola Case to Arbitrate

Spotify was sued in federal court by a user alleging playlists and recommendations are shaped by undisclosed pay-for-play arrangements and hidden commercial incentives. The streaming service moved to compel arbitration because it provided a conspicuous notice of its current terms of service by email and by an in app pop-up, both of which contained a hyperlink with the opportunity to review the applicable arbitration agreement. Spotify's terms of use contained a mandatory arbitration clause and class action waiver. Spotify's terms also said it may make changes and that,“[i]n some cases, we will notify you in advance, and your continued use of [Spotify] after the changes have been made will constitute your acceptance of the changes.” Terms further provided that “[i]f Spotify makes any material change to the Arbitration Agreement..., you may reject any such change by sending us a personally signed, written notice of your decision to opt out of those changes” by email within 30 days. Plaintiff continued to use Spotify after receiving both notices and did not opt out of changes to the arbitration agreement. Plaintiff then upgraded her Spotify account to the paid subscription service and began receiving downloadable receipts that contained hyperlinks to the operative Terms of Use each billing cycle. The presiding judge found that under the Federal Arbitration Act (FAA), 9 U.S.C. § 4, “a district court must enter an order to arbitrate upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.” A court considering whether to compel arbitration pursuant to a purported arbitration agreement must decide: “(1) whether there exists a valid agreement to arbitrate at all under the contract in question and if so, (2) whether the particular dispute sought to be arbitrated falls within the scope of the arbitration agreement.” Applying ordinary contract law principles, courts routinely uphold “‘clickwrap’ (or‘clickthrough’) agreements, which require users to click an ‘I agree’ box after being presented with a list of terms and condi-tions of use” “for the principal reason that the user has affirmatively assented to the terms of agreement by clicking ‘I agree.’” Therefore, Judge John G. Koeltl of the Southern District of New York issued an order granting Spotify’s motion to compel arbitration and dismissing the class allegations with prejudice. See more here-- https://tinyurl.com/bddrkhf2 and https://tinyurl.com/m98eu8na