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

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

Florida Appellate Mediator Certification Changes

Under a new Administrative Order of The Supreme Court of Florida, No. AOSC19-26 governing certification of mediators, several changes to the continuing mediator education (CME) requirements have been implemented. News of the changes came to presently certified mediators via the Florida Dispute Resolution Center (DRC), including the removal of the four-hour appellate-specific CME requirement. I have been mediating appellate cases since 2001, before the statewide certification existed. In 2001, the Fifth District Court of Appeal instituted a pilot program referring appeals to mediation before the expense of briefing. The pilot was deemed a success by the court and adopted as a permanent program in 2004. The program is touted as achieving the goals of saving litigants time and money by resolving disputes more quickly and less expensively than the appeal process. This includes helping parties and counsel to narrow and clarify issues for appeal so that cases can be expedited. For many years, the results have hovered around a third of cases being resolved through the appellate mediation process. Those of us who participated as mediators were grandfathered into the statewide certification which requires four hours of initial instruction by a recognized DRC approved trainer. Until now, four additional hours of CME was required every two years for recertification. However, be advised that effective immediately, certified appellate mediators must maintain only a certification in either of family, circuit or dependency mediation and complete only the standard CME requirements in order to renew as a certified appellate mediator. See more here-- http://tiny.cc/1obh8y

Florida Appellate Mediation Procedures Amended

Changes I proposed to the Florida Rules of Appellate Procedure (FRAP) were adopted by the Supreme Court of Florida last week to conform with amendments previously passed and adopted in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument took place last summer and my rule amendment will be effective January 1, 2015. The new language in Florida Rule of Appellate Procedure 9.720 is 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. The proposed amendments bring the same requirements to appellate mediation. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was even 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. See full opinion resulting from FRAP rules committee regular-cycle report here-- http://www.floridasupremecourt.org/decisions/2014/sc14-227.pdf

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

Appellate Mediation Frustration

Florida led the way in the establishment of alternative dispute resolution procedures to accommodate resolution without trials or the use of the judiciary. In the late 1980s, Florida passed comprehensive court-annexed mediation statutes and the past quarter century has seen enormous growth in the use of mediation as a practical, efficient alternative to traditional litigation for conflict resolution. In addition to the retention of self-determination and capability for creative settlements-- not to mention decreased costs-- courts celebrate reduced dockets, as well as increased levels of satisfaction. As such, appellate courts got into the game, initially with the U.S. Eleventh Circuit Court of Appeals, and then a pilot program by Florida's Fifth District Court of Appeal (DCA) over a decade ago. There was also a program at the First DCA which was dismantled for budgetary reasons and other programs that have since gone. However, recent Florida Rules of Appellate Procedure (found beginning at 9.700) now provide the parties with the option to mediate if not already referred to mediation by the appellate court. These procedures account for tolling and other deadlines and deal with appearance and authority of parties at mediation. Today, at the Orange County Bar Association, we had the privilege of listening to Judge Thomas Sculco, Barbara Eagan and Stacy Ford for a CME on the frustration the process can bring about. Though the success rates are still around 35% for cases settling through mediation after a notice of appeal is filed, there are more challenges to the process given the posture post-trial than in cases that have not yet tried. Appellees are difficult to motivate, but there are some tools appellate mediators can use to move the parties' positions beyond discussions involving splits of authority and the proverbial "careful what you wish for" new trial. A hallmark to successful appellate mediation can be as simple as the ability of the parties to avoid precedent and craft a solution to the conflict that is built around their unique interests and needs. With the advent of Certification of Appellate Mediators by the Supreme Court of Florida, more mediation in the DCAs should be taking place. However, it is up to practitioners and dispute resolvers to educate the judiciary and promote the process beyond courts that have traditionally recognized its benefits.