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.

Remote CME & Training To Continue

This week, the Supreme Court of Florida amended an administrative order (AO) regarding mediator certification and renewal. This continues the judicial system's periodic update for measures to address the effects on court operations of the Coronavirus Disease 2019 (COVID-19) pandemic. Please note this is an amendment to AOSC20-24 issued in the spring. Some provisions of the order expire on December 31, 2020, and some provisions have been extended until December 31, 2021. The Dispute Resolution Center states in a message to mediators that the AO should be read carefully as all dates listed are correct. Provisions that have been extended through December 31, 2021 include:

1. Training programs are allowed to be conducted online 

2. Certified mediators may complete their CME requirements in any format including non-live programs

3. Rules for Certified and Court-Appointed Mediators suspended as to required points for mentorship (except for county mediator certification, some mentorship activities may still be needed for applicants to reach the required points for certification)  

4. Electronic signatures of mentors in the mediator certification application may be provided; and

5. Deadline extensions granted for approved mediation trainers through December 31, 2021.

See more here-- https://bit.ly/2LR95gi

Mandatory Non-Binding Arbitration Now Available

A new Administrative Order in Ninth Judicial Circuit Court of Florida now permits a presiding circuit or county court judge to refer civil cases to non-binding arbitration without the consent of the parties, much like cases are referred to mediation. This is the first time in our local courts that such a dispute resolution mechanism, other than mediation, is available for the judicial officer to resolve backlogged cases due to Covid-19 court closures. The development is expected, as other jurisdictions have demonstrated success in culling dockets with this technique. Though some counsel and their clients have expressed disdain for the process, which can be more like a mini-trial, others have found it useful in getting to the heart of the dispute. Per the order, the non-binding arbitration hearing shall be conducted informally with a decision within ten days of the final adjournment. Presentation of testimony shall be kept to a minimum and other matters shall be presented primarily through the statements and arguments of counsel. Arbitration fees shall be equally divided between the parties, unless otherwise agreed by the parties or ordered by the court. The arbitrator or chief arbitrator shall determine the hearing procedures in advance of the hearing, including what live testimony, if any, will be permitted and the nature, scope, and duration which will be set forth in the Notice of Non-binding Arbitration Hearing. When a case is referred to non-binding arbitration the parties shall have fifteen days within which to agree on the number and selection of their own arbitrator(s); otherwise, the presiding judge shall determine the number of arbitrators and select them. See more here-- https://bit.ly/3oD0QlS

FL Courts Largely Remain Closed

Even with a falling case trend of recent Covid-19 statistics, the courts around the state are in phased reopening status, a daily snapshot of which can be found at the link at the end of this update. The Supreme Court of Florida's evolving Emergency Procedures orders have focused on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." This is good news for parties and their counsel who can't get to a jury just yet. Remember, some 98% of cases settle before trial. A few circuits have engaged in the limited pilot program of remote trials with mixed reviews. At present, all courts remain at either Phase 1 or 2 in this continuing pandemic. As a reminder, Phase 1 means in -person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare. Phase 2 encompasses limited in-person contact is authorized for certain purposes and/or requires use of protective measures. Phase 3 states in-person contact is more broadly authorized and protective measures are relaxed. Finally, one day (hopefully next year) we will get to Phase 4 when COVID-19 no longer presents a significant risk to public health and safety. In the meantime, call your mediator and get those pending matters settled! See more here in this updated color-coded guide-- Court Phased Opening Status

New Admin Order: Orange-Osceola Courts Opening

Please take note this morning that everyone entering the courthouses in Orlando and Kissimmee will be required to wear a mask and undergo a health screening with a temperature check before entering the building. Masks shall be worn in all public areas of the court facility, including courtrooms or hearing rooms, unless the Judge or Judicial officer authorizes its removal. Per the Administrative Order by Chief Judge Myers, all persons will be checked for their body temperature using an infrared or other non-contact temperature device before entrance to a court facility. Any person who registers a body temperature of 100.4 degrees or greater shall not be permitted to enter the court facility. In the event an individual refuses to undergo a health screening or temperature check, or refuses to wear a mask for entrance to the court facility, the security personnel or other person performing the health/temperature checks shall attempt to obtain and record the same information described above. Once the information is obtained, the information shall be provided to the appropriate Judge, Judicial Officer, Clerk, or other court facility occupant so that alternate arrangements can be made for the person, such as a remote appearance, rescheduling a hearing, or other measures, as necessary. In regard to civil proceedings, according to last week's judicial town hall meeting, remote hearings are still a priority and dispute resolution via electronic means is still encouraged during COVID-19. UPDATE: Court returned to Phase 1 restrictions due to spiking Coronavirus numbers June 23, 2020. See full order here- https://bit.ly/2yPCZLA

Florida Courts Remain Closed

This week, the Chief Justice of the Supreme Court of Florida acted on the recommendations of a statewide Court Continuity Workgroup, issuing an amended administrative emergency order increasing the list of proceedings state courts will accomplish by remote technology during the Coronavirus pandemic. As such, jury trials in Florida are suspended until July 2nd and other deadlines are pushed back until following the July 4th holiday weekend. The court recognized that in-person jury trials pose a special hazard because they can expose jurors and other courtroom participants to a risk of infection. Future extensions will be considered, if needed. Of interest to followers of this blog, the order especially focuses on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." Case types listed in the order will be held by telephone or other electronic means. Of course, online ADR or ODR has been in full effect since this all started using various existing commercial platforms like WebEx, Zoom and GotoMeeting. Additionally, the Continuity Workgroup that I blogged about last month was asked to submit recommendations as they are developed to guide a phased return to full court operations. The expanded list of essential proceedings adds to earlier efforts to mitigate the impact of Coronavirus while letting courts operate in a way consistent with public safety. Florida’s courts have followed emergency guidelines since a March 13th order, when jury trials were first suspended and actions restricting in-person proceedings were implemented to enforce social distancing. Subsequent orders extended these limits through the end of May, subject to future orders made necessary by the pandemic. Chaired by Orlando Circuit Judge Lisa Munyon, the Court Continuity Workgroup’s mission includes examining the current status of all court proceedings statewide and proposing methods for resolving cases with remote technology and other new procedures that may remain when all this is over. According to the court, the move toward more virtual proceedings is a major historical shift in state court operations, which have relied heavily on in-person hearings in the 175 years Florida has been a state. See more in the latest Administrative Order here-- https://tinyurl.com/yb7jypo9

COVID-19 Court Continuity

The Supreme Court of Florida just released an Administrative Order creating a Florida Court Continuity Workgroup, consisting of a seventeen member task force meant to find ways for the courts to operate as fully as possible during each stage of the Coronavirus pandemic. Chief Justice Charles Canady selected our very own Ninth Circuit Judge Lisa Munyon to chair this workgroup. I worked alongside her as a General Civil Magistrate, hearing matters in Orange County's Circuit-Civil Division Business Court cases. She is a very effective judge and also leads the statewide Florida Courts Technology Commission that explores traditional and innovative methods of utilizing compatible technology infrastructures to improve case management and efficiencies in the judicial branch. As chair of the new workgroup, she will guide esteemed law professionals from across the state in their mission to examine the current status of court proceedings, propose methods and rule changes, find solutions for legal issues, and in recommending the priority of proceedings to resume. Specific to Alternative Dispute Resolution (ADR), the members will identify and propose solutions for implementation challenges and cost issues associated with the use of remote technology. The workgroup will also consult with other stakeholders and public health experts to determine the best way to implement a plan for a staged return to full court operations. See full order AOSC20-208 here-- https://bit.ly/2Vs0jaM