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

Appellate Mediation Sanctions for Non-Attendance

Participants and counsel are reminded of the importance of appearance at mediation in a recent opinion of the Fifth District Court of Appeal. In an appeal from a final judgment, Florida's 5th DCA entered an order referring the matter to appellate mediation (a program in which I've participated since 2001). The order specifically stated that representatives of the parties with full settlement authority were required to attend the mediation in person, unless excused from attendance by the court. The order further stated that the failure to appear could result in the imposition of sanctions. At the commencement of the mediation, no representative appeared for appellant which also provided no certification of full authority to settle. Appellees objected to the absence of the representative and to the limited authority of the insurance company representative. The mediation proceeded without a waiver of objections, resulting in an impasse. Rule 9.720 of the Florida Rules of Appellate Procedure (which I helped amend as a corollary of civil procedure rule 1.720) governs appellate mediation procedures and provides that if a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion of a party or upon its own motion, may impose sanctions. The 5th DCA cited in their interim opinion awarding sanctions, previous holdings in Carden & Associates, Inc. v. C.O.D. Trees Partnership, 83 So. 3d 862 (Fla. 5th DCA 2012) and Carbino v. Ward, 801 So. 2d 1029 (Fla. 5th DCA 2001), finding them appropriate for a party's failure to appear at a court-ordered mediation, even though an insurance company representative was present. The court also referenced Mash v. Lugo, 49 So. 3d 828 (Fla. 5th DCA 2010) which held imposing sanctions were appropriate against a party for failing to appear, although counsel appeared who claimed to have full settlement authority. Sanctions in the present case included all fees charged by the mediator, all reasonable attorney's fees and costs incurred in preparing for and attending the mediation, as well as the costs incurred in filing a motion for sanctions. The court reserved the right to impose additional sanctions, including dismissal of the appeal or the assessment of additional attorney's fees and costs. See slip opinion here-- HDE v. Bee-Line, Case No. 5D15-2805 http://www.5dca.org/Opinions/Opin2015/122815/5D15-2805,non-disp.op.pdf

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

Orlando Mediator Lawrence Kolin Joins Upchurch Watson White & Max

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in settling disputes, including serving as a Mediator, Arbitrator, E-Neutral and Special Master. In this role, I'll keep writing on implementing innovative methods of ADR to resolve cases, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on this, my officially ABA listed "Blawg." For more complete information and to schedule, see-- http://www.uww-adr.com/biography/lawrence-h-kolin (800) 863-1462 For the press release regarding my joining this prestigious group of dispute resolvers, see-- http://www.prweb.com/releases/mediator/lawrence_kolin/prweb12283619.htm

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

Chinese iPad? Confucius say: Mediate

Apple's newest iPad is still unavailable in China. Apparently, the Higher People’s Court of Guangzhou began hearing an appeal by Apple following a Chinese lower court's ruling in favor of a Chinese tech company, Proview, that claims ownership of the trademark in China. The court’s foreign affairs office states the court will withhold judgment as long as both parties continue talking. Proview’s lawyer confirms mediation will continue, though a “big gap” remains between the two sides, according to reports. Proview seeks up to $1.5 billion. Revenue from China accounts for almost twenty percent of Apple’s total. In China, mediation is a way of life and litigation is seen as a last resort, embarrassing to honor and the community. Harmony, professed by Confucius to be valuable in governance and social order, is a principle to which Chinese culture adheres. Mediation by a third party has a long history dating back as early three thousand years ago, during the Xi Zhou Dynasty. Perhaps this tradition will help resolve a modern technology dispute involving one of the world's most coveted gadgets. See more information at http://zd.net/LbQLrz and http://bit.ly/KHDsLw UPDATE: 7/2/12 - Apple pays $60 million to settle iPad trademark dispute in Chinese high court-mediated deal See story http://yhoo.it/OTBT1R

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.

5th DCA sanctions for failure to appear at appellate mediation

Under Florida Rule of Appellate Procedure 9.720, an appellate court may impose sanctions for failure to appear without good cause. Neither the individual appellant nor a representative of the corporate appellant attended the mediation ordered in this matter. The insurance company representative and attorney were the only ones who appeared. The 5th DCA stated the law is clear: absent being excused by the court, a party must appear at mediation and a representative of the insurance company cannot take the party’s place (citing Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)). The court further explained the fact that Carbino involved a trial mediation, rather than an appellate mediation was of no relevance because the language in the applicable rule of civil procedure is identical; Fla. R. Civ. P. 1.720(b). Thus, the appellants were ordered to pay sanctions within 30 days, including all fees charged by the mediator in connection with the appellate mediation and appellee’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation, as well as for filing the motion for sanctions. See decision http://www.5dca.org/Opinions/Opin2012/010212/5D11-2960.op.pdf