Now Available as AAA Panelist

Orlando Mediator Lawrence Kolin is now available as a panel neutral for the American Arbitration Asoociation (AAA). Though Lawrence was a party-selected AAA arbitrator and mediator in the past, and has even presented educational programs in conjunction with AAA, he has officially become a member for purposes of resolving cases under the auspices of AAA. As a reminder, Mediation is used to resolve a broad range of conflicts within a variety of settings. Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Mediation agreements may be included as part of a contract that specifies what procedures will govern the mediation process. Alternatively, parties frequently agree to mediate following the onset of a dispute regardless of whether their contract stipulates mediation as a means of resolution, or when there is no contract between the parties. Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired. See more here-- https://tinyurl.com/bdzj99bw

Fox Settlement Shows Remote Mediation Works

Since the advent of the virtual mediation essentially with the rise of remote attendance resulting from the pandemic, lawyers seem skeptical of the effectiveness of this mediation technique. This skepticism persists, even after many polls of over a thousand full-time neutrals revealed that settlement rates remain as before largely the same as in-person cases. As evidenced by employing a mediator colleague of mine from the National Academy of Distinguished Neutrals (NADN.org) floating down the Danube during a high-stakes, eve of trial negotiation in a high profile case with results certain to be impactful, it is possible to achieve resolution by remote attendance. This method is pretty much the default in the state of Florida and around the country and is usually possible despite standing orders that may not specify so in the name of self-determination with agreement of the parties. People are now facile with off the shelf technology like Zoom and are quite used to interacting with others in this medium. Likewise, mediators using this space are in their third year of building rapport without actually being there, not counting prior experience with telephone negotiation, etc. (also used here among as many as 50 calls and was always an option before Covid). Don't underestimate the ability to get things done in short order without sitting down at the same table. But if you must, we still do that too! See more here-- https://tinyurl.com/tfj4bttt and https://tinyurl.com/ybp3zy5j

Fla.11th Jud. Cir. Responds to Mediator Rules Proposals

Florida's Eleventh Judicial Circuit in Miami-Dade County formally commented on proposed amendments to the Florida Rules for Certified and Court-Appointed Mediators. The proposed changes completely revise Mediator Rules relating to disciplinary matters. The stated intent of the proposal is to address inconsistencies, gaps and omissions found in the present version. However, the Miami judicial circuit claims inconsistencies, gaps and omissions require further consideration by the committee before being approved by The Supreme Court of Florida. The Eleventh Judicial Circuit Mediation/Arbitration Unit stated they recognized the importance of clear and concise guidelines and rules to maintain the ethical standards of the profession and to maintain the public confidence in the mediation process. Their comment emphasizes that the rules, as proposed in the amendments, blur the fundamental principles of equity, due process and neutrality. They find certain amendments are vague, arbitrary, and impose an inequitable burden on the mediator who is the subject of disciplinary action. After a thorough review in which they enumerate the new language and procedural changes, they suggest that instead of promoting a more comprehensive uniformity and consistency, the broad nature of the changes perpetuates further inconsistency and general confusion in the proposed disciplinary procedures. The Florida Bar ADR Section is also considering filing formal comments to these rules proposals and has sought an extension for such period to and including August 24, 2015. Accordingly, the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy is allowed to and including September 14, 2015, in which to file its response. See more here-- Case Number: SC15-875 - IN RE: AMENDMENTS TO THE FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS http://jweb.flcourts.org/pls/docket/ds_docket_search

Washington needs a Mediator!

Indulge me for a moment on the crisis facing our nation. In a dozen years of mediating, I've seen this play many times. The parties have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, a mediator is necessary. As the late Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. God Bless America.

New FL Ninth Judicial Circuit Biz Court Procedures

Now approaching a decade in existence, Florida's Ninth Judicial Circuit Complex Business Litigation Division or "Business Court" in Orlando specializes in handling complex business cases, such as antitrust, commercial foreclosure, intellectual property, franchise and unfair competition lawsuits. The goal is to handle business litigation matters in a more effective and efficient manner, much like the federal courts. The Business Court Procedures, known locally as the BCP, have just been revised retroactive to April 1, 2013 (in conjunction with civil division e-filing http://www.ninthcircuit.org/about/divisions/civil/downloads/ECF%20NOTICE%20final.pdf). New and notable is the requirement of attorneys who provide more than 50 pages of materials to the court for hearing preparation (typically done by the delivery of indexed binders) to provide this material now only on a USB drive. Also significant is the change to BCP 5.11(a) which requires that contested discovery motions be fully briefed unless the motion will be heard by the magistrate, or unless excused by the trial judge. The use of mediators and magistrates may be discussed the case management process, as well as in resolving ESI disputes arising out of electronic discovery. See Biz Court links here-- http://www.ninthcircuit.org/about/divisions/civil/complex-business-litigation-court.shtml and revised BCP http://www.ninthcircuit.org/about/divisions/civil/downloads/Business-Court-Procedures.pdf

ODR - Online Dispute Resolution

I listened to a live streaming broadcast on http://www.blogtalkradio.com regarding Understanding the Benefits of Online Dispute Resolution. This show was produced for Cyberweek 2011 - the annual virtual conference dedicated to the innovations and developments of ODR by the Werner Institute at Creighton University via ADRHub.com. This show broadly discussed how online dispute resolution processes are used to deal with disputes. Some examples were the voluminous complaints associated with eBay customers and vendors. Other elements of the discussion were geared toward using technology to communicate with mediation participants and even software for moving the positions of the parties. While this may work well in some contexts, I find that the parties' physical presence is integral to the process and must occur in certain types of disputes. Face to face meetings with the help of the facilitator can be crucial in cases involving personal injury and small business. The broadcast outlined various forms of ODR processes, and the benefits and challenges to using virtual communications, including email and Skype. The show, hosted by Texas mediator, Pattie Porter, contained highlights from ODR experts in the field Dan Rainey, Colin Rule, and Noam Ebner. It appears we are increasingly utilizing technology in ADR, but perhaps not yet on the verge of virtual mediation. Some longtime services like CyberSettle have found success in limited areas, such as a computer-assisted system for settling insurance claims. However, for thousands of years, the personal interaction of the neutral third-party mediator working directly with the parties has been essential to the process and will likely remain a part of modern dispute resolution.

Retired NFL Players Seek Inclusion In Mediation

The unusual goal of a newly filed complaint is to have Judge Nelson, under whose orders the existing lawsuit's mediated negotiations are being held, instruct the mediator, the league and the current players to allow representatives of the retired players to be active participants in the negotiations.

The latest class-action complaint is aimed against the teams, the league, the players named in the Brady v. N.F.L. lawsuit and DeMaurice Smith, the head of the N.F.L. Players Association. It asserts that the sides are violating antitrust laws by negotiating settlement terms that improperly encompassed the rights of retired players in the time since the N.F.L.P.A. renounced its union status. Namely, it alleges the are conspiring to depress the amounts of pension and disability benefits to be paid.

Apparently, lawyers for the present players e-mailed to attorneys for retired players stating they would negotiate issues like the salary cap and free-agency rules, while lawyers for retired players would be allowed to suggest retired-player issues in connection with proposals before the mediator, Magistrate Judge Arthur Boylan.

Certainly, these developments will impact the pending NFL suits and may even influence the NBA litigation.

See report at: http://nyti.ms/iRsNxn

NFL Lockout - Mediation in the spotlight

Though the NFL and the NFLPA agreed to an ultimately failed initial mediation, at least the primary problem of this negotiation, the lack of trust between the two sides, was exposed. George Cohen, a highly experienced federal mediator with a background in sports, apparently found no flexibility in the preliminary search for common ground.

Now, Judge Nelson, a recent Obama appointee, in charge the National Football League players’ lawsuit against the NFL, may use her reported skill in resolving disputes to urge players and owners to settle their emotionally charged conflict over billions in annual revenue. Judge Nelson's decision, whether or not to enjoin the lockout, is going to affect enormously the leverage on either side. She spent ten years as a Magistrate Judge reportedly strongly encouraging parties to settle their disputes over the complaints of eager trial lawyers...

http://www.washingtonpost.com/sports/nfl/nfl-lockout-judge-susan-nelson-has-reputation-as-a-master-mediator/2011/03/24/AFrBIJrB_story.html

U.S. Supreme Court will hear Arbitration matter next term

A scam targeting law firms is heading to the high court to determine when businesses waive their right to arbitration in consumer litigation. In the past, the U.S. Supreme Court has taken a liking to arbitration and arbitration cases, often siding with businesses that make binding arbitration part of their contracts in the interest of judicial efficiency. Plaintiff lawyers argue arbitration clauses are unfair to consumers and are just a way for banks to short-circuit class action lawsuits. The case claims Citibank’s actions run contrary to the high court’s prevailing philosophy on arbitration. Oral Argument will be set during court session beginning next fall.

-- Daily Business Review, Miami

Orlando Foreclosures

In 2010, Orlando continued to rank among the top 10 U.S. metro areas for foreclosures during the first half of the year — outpacing even Miami.

When the Supreme Court of Florida ordered mediation programs to be managed by agencies outside of the court system, the Orange County Bar Association became one of the neutral managers maintain a rotating list of Certified Circuit-Civil Mediators, each of whom has completed extensive additional foreclosure training.

When filing foreclosure actions on owner-occupied or Homestead property and the homeowner elects to participate in the mediation program, both sides are required to attend the mediation, including the lender's representative with full settlement authority (though this is often done on the telephone).

Thus far, I was pleasantly surprised to have been able to successfully explore work-out style resolutions in my assigned cases as Mediator.

What has been your experience to date as a neutral or counsel to a party in this process?

Welcome to Orlando Mediator

This blog was created by Orlando Mediator Lawrence H. Kolin, Esquire to explore issues and trends in dispute resolution.

My alternative dispute resolution practice has continually evolved since becoming certified in 2001 in Circuit-Civil and County mediation by the Florida Supreme Court. I have handled complex cases in state and federal trial courts, as well as the Fifth District Court of Appeal, where I was a member of the pilot program for appellate mediation.

Since litigation costs have gone up and the economy is still sour, early settlements are on the rise. Pre-suit mediation is popular and can be effective if the parties have enough information to evaluate their positions in the potential litigation.

Another recent development has been the advent of electronic discovery and the struggle by courts and lawyers to get a handle on the necessity and expense of producing and exchanging data in proportion to the amount in controversy. Early mediation of these e-discovery issues can actually help narrow the scope and return the focus of the parties to the merits of the case.