ADR Rules & Policy Approves Language

This week, the Florida Supreme Court's ADR Rules and Policy Committee approved in its response regarding rule amendments (by a vote of 16 to 0) my suggested change submitted through the ADR Section Executive Council comment regarding revisions to Rule 10.340(d)(2) on conflicts of interest as follows: “(2) the mediator previously provided services (other than mediation services) for, or represented one or more of the mediation participants in, the matters current case or dispute at issue in the mediation; or…" The ADR Rules and Policy Committee found this narrows the scope of the proposed language. They agree since this provision addresses “clear” conflicts of interest, which are not waivable, the scope should only be broad enough to address the harm to be avoided. The Committee’s language, “matters at issue in the mediation,” is broader than my suggested language. The broader scope would require a mediator to decline serving as a mediator even if the potentially conflicting interests are not directly related to the case or dispute being mediated. For non-waivable conflicts of interest, a narrower scope may be preferable in order to ensure that parties have the widest latitude in selecting a mediator, while still ensuring mediator impartiality. Therefore, the Committee supported narrowing the scope through alternate language and has asked the court to adopt it and other changes pending a decision to grant oral argument. See more here-- http://tinyurl.com/eedckhhj

Pipeline mediation effort backfires

Former U.S. Senate Majority Leader, George Mitchell, stepped down from potentially mediating settlement talks over a deadly Northern California pipeline explosion after state regulators set up a private process criticized by several parties as an unfair, "backroom deal." California's Public Utilities Commission appointed the former senator earlier this month to mediate Pacific Gas & Electric Co.'s (PG&E) fine for the blast. San Bruno and San Francisco objected because he and his law firm previously had represented public utilities. This is perhaps unfortunate, as those with industry experience actually may be more helpful to these specialized negotiations. What seemed to really prompt the concern was was the decision to appoint him without prior consultation of the parties. Of course, any conflicts perceived should have been disclosed in advance of the mediation. Over the past couple of years, PG&E faced grueling public hearings over potential malfeasance leading up to the 2010 blast, which killed eight people and destroyed 38 homes in San Bruno, just south of San Francisco. Read more: http://bit.ly/VtF27y