Permanent Remote Mediation Authorized By Fla. S. Ct.

This summer, the Florida Supreme Court provided permanent civil rule changes authorizing the remote conduct of certain court proceedings including mediation, appellate mediation and arbitration. The court's Workgroup on Continuity of Court Operations and Proceedings During and After COVID-19 was directed to identify whether certain proceedings, due to efficiencies beneficial to stakeholders, could continue to be conducted remotely when COVID-19 no longer presents a significant risk to public health and safety. The Workgroup determined that permanent, broader authorization for remote proceedings was warranted based on the positive outcomes and efficiencies observed during the pandemic. Beginning with Rule 1.700, Florida Rules of Civil Procedure, common to mediation and arbitration, the amended language now provides for use of communication technology (as that term is defined in Florida Rule of General Practice and Judicial Administration 2.530) authorized in mediation and arbitration by stipulation of the parties or by court order. Absent direction in the order of referral, mediation or arbitration must be conducted in person, unless the parties stipulate or the court, on its own motion or on motion by a party, otherwise orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation. Also of note, is that Rule 1.720 now states a party is deemed to appear at a mediation conference if physically present or, if authorized, participating through the use of communication technology. Please note under Rule 1.730, if an agreement is reached, it must be reduced to writing and signed by the parties and their counsel, by original signature, electronic signature, or facsimile and may be in counterparts. Importantly, the parties may not object to the enforceability of an agreement on the ground that communication technology was used for participation in the mediation conference if such use was authorized. Similar language is found in Rule 1.750 in regard to county court mediation. The communication technology provisions also apply to appellate mediation and are found in revised Florida Rules of Appellate Procedure 9.700, 9.720 and 9.740. These amendments become effective October 1, 2022 and recognize the sea change that took place during court closures. The shift to remote proceedings helped ease a backlog of cases by litigants being able to access hearings and alternative dispute resolution though Zoom and other available online platforms to resolve matters. See complete opinion here-- https://www.floridasupremecourt.org/content/download/843197/opinion/sc21-990.pdf

Mediation Week 2021

October 17-23 is officially Mediation Week in Florida and elsewhere, marking the importance of dispute resolution as an effective substitute to litigation and the fact that mediation has continued virtually during the pandemic, allowing parties to resolve disputes without resorting to litigation in a system of very backed-up court dockets. Alternative Dispute Resolution (ADR) has been used by Florida courts for more than 30 years. I have been mediating lawsuits for over 20 years now and this past year and a half was the most seismic shift in our profession and the legal profession in general. Online Dispute Resolution (ODR) will now continue as an option following the pandemic through confidential sessions conducted remotely with widely available commerical off-the-shelf technology. More than 5,500 mediators are currently certified by the Florida Dispute Resolution Center. These professionals meet specific standards set by the Florida Supreme Court in the areas of county, family, circuit, dependency, and appellate mediation. In most cases, discerning counsel and their client parties select the mediator. However, a mediator may be appointed by the court when litigants are unable to select their own. Mediation week brings annual focus on ADR work and highlights how individuals, administrative agencies, and businesses can use mediation to develop efficient and customized solutions to conflicts. See more here-- https://bit.ly/3AU5XUt

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

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.

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

Small Claims ODR Pilot Begins

The Ninth Judicial Circuit Court of Florida begins its free Small Claims Online Dispute Resolution (ODR) program this month in Orange County. If both parties provide an email address on file with the court in a case that qualifies for ODR, the court will notify them of the availability to use ODR to resolve the case. The email will also provide instructions on how to register with the Online Dispute Resolution Center located at the custom domain found here-- https://flcourts09sc.modria.com. There, the plaintiff will answer some questions about the case. The court will then send the defendant an email. The defendant should review the information and provide a response. If a solution can't be found with the other person, either can ask for help from a real mediator (Surprise, AI not quite the end-all be-all yet!). A mediator is a certified specialist trained to help litigants in County Court reach a resolution. There is no longer a need to appear for a Pretrial Conference Mediation date if the parties reach a signed agreement using the Online Resolution Center. Timeliness matters in this process which must be completed at least 10 calendar days before the Pretrial Conference Mediation date. If parties do not complete the process by the deadline, they will need to appear for the assigned Pretrial Conference Mediation date. This process comes about via the court being an existing licensee of software like Odyssey from Tyler Technologies. Specifically, they are allowing the use and integration of Modria, which has a demonstrated record of resolving small dollar consumer cases in online commerce. I spoke to representatives of the public company last year and they plan to expand in other jurisdictions. See more here-- ow.ly/yJ5w50zu80h and https://tinyurl.com/yafdrm63

Online Dispute Resolution - Here to Stay?

With the Coronavirus crisis severely curtailing the practice of law in courthouses across the country, many are turning to settling cases using readily available technology. Mediations have been conducted by Zoom, GoToMeeting and Skype, as well as telephone and text. There is no barrier to attending using off-the-shelf equipment and simple apps available for download. Though we have utilized these methods before the COVID-19 pandemic, it was usually due to the unavailability of a party in person and to enable remote attendance at a mediation conference. Because trial dockets across the country are now in disarray, mediation of pending cases provides the soonest means of self-determining an outcome to cases. Online Dispute Resolution or ODR solutions can be accessed from the comfort of your couch-- talk about social distancing! As with traditional mediation, online mediation allows the mediator to adapt the process to address the particular needs of parties. Caucuses are still possible, ensuring confidentiality and candor in negotiation. As these participants can attend from their businesses or homes, there are reduced costs and less time expended overall in convening the process. Access problems are no longer an issue with the use of cell phone applications widely available for devices of all stripes with the most popular communication platforms in the marketplace. Some will say there are disadvantages to not being in person, such as the ability to read the room or to poke your head into a caucus for a "Would you, could you?" Of course, there is a 3,000 year tradition of face-to-face mediation, but that doesn't mean ODR cannot be effectively employed in many types of cases. Whether a settlement is reached or not, much is still learned by parties and counsel through the exercise. We shall see what the future of this uncertain time holds and it will eventually pass, but it is likely ODR will be adopted by many a dispute resolver and their clients. Stay healthy out there!

May Webinars at Noon 5/1 & 5/9

I'll be participating in two webinars you can attend during lunch at your desk next month on May 1st and May 9th. The first presentation is brought to you through The Florida Bar Alternative Dispute Resolution (ADR) Section and will provide an overview of the latest in Online Dispute Resolution (ODR). This live audio webcast will examine different emerging ODR processes that are currently available. We'll look at the benefits of using such processes, the technology used to implement those processes and the ethical issues presented when engaging in virtual or online mediation. The Florida Bar has approved the online program for 1.0 General / 1.0 Ethics / 1.0 Technology Continuing Legal Education (CLE) credits. Of course, certified mediators may also submit as Continuing Mediator Eduction (CME) credit to the Dispute Resolution Center (DRC) upon their renewal. As a bonus, if you are a member of our ADR Section, you qualify for a $10 discount on the $50 registration fee. The webcast will remain accessible for 90 days after purchase. I'm moderating a panel featuring my ADR Section colleagues Christy Foley of Winter Park and Natalie Paskiewicz of St. Petersburg. See more information here-- https://bit.ly/2GDA9dE Register here-- https://bit.ly/2XE3Hxt The second presentation is complimentary and focuses on techniques for closing gaps at mediation. Our program on the GoToWebinar platform will feature my firm colleagues Michelle Jernigan and Jeff Fleming. We will explore scenarios for getting to yes. The course is designed for any attorney who negotiates during mediation and wants to better understand what skilled mediators do to narrow gaps that develop or widen. The webinar will provide 1.0 General CLE hours from The Florida Bar and you can register here-- https://bit.ly/2KWuZh3

Online Dispute Resolution Update

As we head into 2017, I wonder about technology influencing the future of mediation as the prevalence of artificial intelligence in the law grows in areas like Electronic Discovery. Online Dispute Resolution (ODR) has been the subject of much debate and is more popular overseas than in America, though many online merchants have been using systems such as Modria for years on low dollar disputes to resolve customer issues. My colleagues and I have even debated the efficacy of such an impersonal form of Alternative Dispute Resolution in the Executive Council of The Florida Bar's ADR Section. Now, University of Maryland Law Professor Robert Condlin has authored an article entitled,“Online Dispute Resolution: Stinky, Repugnant, or Drab." In it, he provides an overview of currently existing processes and identifies potential consequences related to their use, suggesting refinements. For instance, most ODR programs require parties to describe their claims in fixed, predefined categories that may not capture all claims dimensions or limit the opportunity to argue substantive merits underlying their worth. He raises limits to the ability to resolve differences on the basis of private software algorithms that raise fairness issues not present in dispute resolution systems run principally by humans. Professor Condlin opines there are certain legal, political, and moral concerns yet to be addressed that ODR proponents must answer if online systems are to satisfy the demands of state-sanctioned, public dispute resolution. See more of the abstract here cited as U. of Maryland Legal Studies Research Paper No. 2016-40-- http://bit.ly/2iEp5Cf and materials from ADRHub's CyberWeek 2016 on the latest in predictive analytics for negotiation-- http://bit.ly/2i7uOj9

Cyber Week 2015

It's Cyber Week again! This program focuses on trends in the emerging field of "ODR" or online dispute resolution. Anyone can attend this interesting virtual conference on the future of alternative dispute resolution which is sure to be filled with a wealth of webinars, discussion forums and activities. A content rich website, hosted by the ADRhub-Werner Institute at the Creighton University School of Law in Omaha, contains a variety of webinars discussing the integration of technology and dispute resolution. The link below provides access to registration links for the online educational activities this year. Event organizers encourage visitors to review the entire program to ensure not missing a topic that will meet interests of practitioners considering using technology in dispute resolution processes. Some highlights from the program include presentations entitled: Video Mediation, Power of the e-Apology, and a mobile app demonstration by the developer of Picture It Settled, about which I've blogged before. It seems the topics this year are more domestic focused, as international mediators were more interested in this form of mediation at this juncture last year. Curtailing travel costs can be incentive enough to mediate online, but the efficiency of the software in being able to access negotiations at the user’s convenience seems to be the main feature touted in this modern method of settling lawsuits. Amounts in controversy will likely drive the ODR process to lower value cases with a shorter average duration. Efforts in this area have been around for more than a decade, but I'm still not sure ODR is ready for prime time in larger cases where a human element in decision-making is often intangible without parties participating in person. See more here-- http://www.adrhub.com/page/cyberweek-2015

ODR Adopted in EU

Online Dispute Resolution or "ODR" has been a niche area for resolving merchant disputes in North America. Our friends across the pond have implemented this technique as of last summer on the heels of a more traditional ADR directive. The new ODR Regulation will enable consumers to bring claims easily, intending the result of a unified EU approach to consumer disputes. The cost of the ODR procedure should be nominal, further reinforcing the aim of the EU to encourage the free movement of goods. However, use of the new procedures will not be mandatory and the procedures will not apply to traders established outside the EU that sell there. Despite the absence of an obligation on the parties to engage in ADR, traders are obliged under the prior EU ADR Directive to provide consumers with certain information relating to ADR entities and ADR schemes which are relevant to their business sector. ODR Regulation further requires that online traders provide a point of contact, as well as a link to the ODR Platform. The ODR Platform offers a single point of entry to EU consumers and traders seeking to resolve disputes out of court which arise from online transactions. Complaints can be filed electronically in all official languages of the EU. The ODR Platform will subsequently transmit the online complaints to the ADR entity competent to deal with the specific dispute. Finally, the ODR Platform provides its own case management tool that enables the ADR entity to conduct the ADR procedure through the ODR Platform. It should be interesting to see the statistics on use and settlement once ODR has taken hold in the EU. See more here from Morrison & Foerster-- http://bit.ly/1O86RSZ

Cyber-everything

This week featured Cyber Monday and, in case you missed it, last month we had Cyberweek 2014 for "ODR" or online dispute resolution professionals. This interesting virtual conference on the future of alternative dispute resolution was filled with a wealth of webinars, discussion forums and activities. A content rich website, hosted by the ADRhub-Werner Institute at the Creighton University School of Law in Omaha, contains a variety of webinars discussing the integration of technology and dispute resolution. The link below provides access to the activities that took place this year. The organizers encourage visitors to review the entire program to ensure not missing a topic that will meet interests of practitioners considering using technology in dispute resolution processes. Some highlights from the program include presentations entitled: A Panel Discussion on ODR and Ethics, Trends In Conflict Throughout the United States, Technology and ADR, and A Practical Approach to Online Mediation. It seems international mediators are more interested in this form of mediation at this juncture. Travel costs can be incentive enough to mediate online, but the efficiency of the software in being able to access negotiations at the user’s convenience seems to be the main feature touted in this modern method of settling lawsuits. Amounts in controversy will likely drive the ODR process to lower value cases. According to one ODR vendor in the UK, the average duration is one hour in a case that would typically be found in a US county court. Efforts in this area have been around for more than a decade, but I'm still not sure ODR is ready for prime time in larger cases where a human element in decision-making is often intangible without parties participating in person. Archived Cyberweek webinars remain available here-- http://www.adrhub.com/page/cyberweek-2014