Oral Argument On FL Remote Proceedings Rules

Today, the Supreme Court of Florida heard from various commenters, interest groups and bar sections on the changes proposed to multiple procedural rules to include attendance by remote technology, including mediation. The Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 filed a comprehensive petition to amend the Florida Rules of Civil Procedure, the Florida Rules of General Practice and Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Rules of Traffic Court, the Florida Small Claims Rules, and the Florida Rules of Appellate Procedure. The proposed amendments would provide permanent, broader authorization for the remote conduct of court proceedings. The justices seemed largely receptive to the package and had few questions for those appearing at oral argument, indicating the new rules package will most likely be accepted as proposed. See more in docket here-- https://bit.ly/3st7kYa and oral argument here-- https://wfsu.org/gavel2gavel/

Sanctions for Shaq Skipping and Skyping into Mediation

In a Florida federal case, lawyers were sanctioned for advising their client, former NBA All-Star Shaquille O’Neal, that he didn’t need to personally attend court-ordered mediation. United States District Judge James Cohn of the Southern District of Florida ordered lawyers to pay $13,000 to cover mediation costs for a plaintiff who sued Shaq for allegedly ridiculing his appearance. Plaintiff has a rare genetic disorder that causes tooth loss and facial deformities and has since started an anti-bullying campaign on Facebook that attracted 20,000 members. Shaq posted a photo of himself on Instagram and Twitter stating "smile people" and imitating plaintiff's facial expressions. The lawsuit alleges defamation and invasion of privacy, though Shaq maintains there was no right to privacy because the photos were already on Instagram. He also said his conduct wasn’t so outrageous or extreme as to establish liability. Shaq reportedly attended via Skype and sent a representative to participate on his behalf, due to a television appearance conflict on the day of the mediation. The mediation order stated pursuant to Local Rule 16.2.E, the appearance of counsel and each party or a representative of each party with full authority to enter into a full and complete compromise and settlement is mandatory. The local rule says all parties shall be physically present at the mediation conference “unless excused in writing by the presiding judge.” Counsel argued unsuccessfully that the magistrate judge’s mediation order superseded the local rule, but local rule requires a federal district judge, not a magistrate judge, to excuse a party’s attendance in writing. See stories here-- http://bit.ly/1oLnNos and http://bit.ly/1oLnNos and local rule for court annexed mediation in the Southern District of Florida here-- http://1.usa.gov/1SYVSxx

Guess Who’s Coming To Mediation - Next Thursday 2/19 at Noon!

Register for our free Upchurch Watson White & Max CLE webinar: "Guess Who’s Coming To Mediation" February 19. 2015 at noon. UWWM has applied for 1.0 hour General Credit (50 min) CLE from The Florida Bar. Program Speakers include distinguished UWWM mediators: Michelle Jernigan, Lawrence Kolin, and Dominic Brandy. At this unique online seminar, designed to increase or maintain the attorney’s professional competence and skills as a lawyer, you will be exposed to Florida rules under the topic of attendance and authority at mediation. Effective speakers in the areas of mediation certificates of authority and local rules, and use of technology for attendance will engage the audience and inspire conversation and questions on the related topics. The seminar is geared toward litigation practitioners whose clients utilize recognized processes in Florida’s courts to resolve cases, as well as mediators and arbitrators who may be eligible for CME. Michelle Jernigan will serve as our Moderator and review recent state rule changes for certifying attendance under Rule 1.720, FRCP. This rule redefines party attendance/authority and significantly, requires that the parties file a “certification of authority,” 10 days prior to appearing at a mediation conference, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by the amended rule. Lawrence Kolin will continue the discussion of appellate attendance rule, Rule 9.720, FRAP and local rules for court annexed mediation in the U.S. District Courts for the MDFL and NDFL and business court. The new language in Florida Rule of Appellate Procedure 9.720 was originally suggested by Kolin and designed to mirror what has been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. Local court rules for the Middle and Northern Districts of Florida will also be covered. Finally, Dominic Brandy will outline of new rule in U.S. District Court for SDFL and requirement for court approval, if variations are required. Unless excused in writing by the presiding Judge, all parties and required claims professionals (e.g., insurance adjusters) shall be physically present at the SDFL mediation conference (i.e., in person if the party is a natural person or by personal attendance of a corporate representative if the party is an entity) with full authority to negotiate a settlement. The mediator shall report non-attendance to the Court. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court. A Question & Answer session will follow the webinar presentation. Information on panelists at http://www.uww-adr.com/webinar/guess-whos-coming-to-mediation and link to your registration here--https://attendee.gotowebinar.com/register/628144760073036802 so sign-up now!

Oral Argument on Appellate Mediation Rule Changes

Oral argument occurred this morning on my proposed changes to the Florida Rules of Appellate Procedure to conform with amendments previously passed and adopted by the Supreme Court of Florida in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. In my experience, attendance at appellate mediation is an important component of whether such cases resolve before briefing and the formalities of the rules can help the parties to anticipate with whom they'll be negotiating and the extent of authority they possess. Many times, trial and appellate counsel appear together, but it is the client that must decide whether to settle at this stage. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there even was a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. The amendments to Florida Rule of Appellate Procedure 9.720 are designed to mirror those that have been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. This is expected to be adopted as part of the regular cycle change. See court documents here-- http://www.floridasupremecourt.org/clerk/comments/2014/index.shtml

Oral Argument Scheduled on Appellate Mediation Rule Change

Recently, I proposed changes to the Florida Rules of Appellate Procedure to conform with amendments previously passed and adopted by the Supreme Court of Florida in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument has been scheduled before the court for June 5, 2014. Comments were due by April 1st. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. The amendments to Florida Rule of Appellate Procedure 9.720 are designed to mirror those that have been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. See the new rule subdivision language and full three-year cycle report of the Appellate Rules Standing Committee here: http://www.floridasupremecourt.org/clerk/comments/2014/14-227_020314_Petition.pdf

5th DCA sanctions for failure to appear at appellate mediation

Under Florida Rule of Appellate Procedure 9.720, an appellate court may impose sanctions for failure to appear without good cause. Neither the individual appellant nor a representative of the corporate appellant attended the mediation ordered in this matter. The insurance company representative and attorney were the only ones who appeared. The 5th DCA stated the law is clear: absent being excused by the court, a party must appear at mediation and a representative of the insurance company cannot take the party’s place (citing Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)). The court further explained the fact that Carbino involved a trial mediation, rather than an appellate mediation was of no relevance because the language in the applicable rule of civil procedure is identical; Fla. R. Civ. P. 1.720(b). Thus, the appellants were ordered to pay sanctions within 30 days, including all fees charged by the mediator in connection with the appellate mediation and appellee’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation, as well as for filing the motion for sanctions. See decision http://www.5dca.org/Opinions/Opin2012/010212/5D11-2960.op.pdf