Common Ground - Commercial Mediation

This month, I'm pleased to be featured in The Common Ground publication by the Alternative Dispute Resolution Section of the Florida Bar fall/winter issue. I have written about the the dynamics of mediating commercial litigation cases and the unique and different challenges of this type of mediation. Getting the proper parties to the table and adequate preparation of counsel and client are keys to success. I also explain the nuances of commercial mediation by discussing relationships, strategy, multi-party cases, impasse, mediated settlement agreements, and more. Most disputes result from the breakdown of a relationship. Commercial mediators are often able to ascertain the root of that breakdown. Just as in other types of cases, there are underlying relationship issues and while it is conventional wisdom to try and separate the personal from the business issues, it is often the interpersonal that needs to be overcome to get to a satisfactory resolution. For commercial litigation, the atmosphere at mediation should be more like negotiating a complex business deal than making closing arguments. Competitors may even end up becoming partners at the end. See the article along with the entire issue here-- bit.ly/ADR_FW23_CG

3M CEO Required at Mediation

A Florida federal judge has ordered 3M CEO Michael Roman to attend mediation to resolve some 260,000 lawsuits alleging its military earplugs caused hearing loss. The judge wants the executive present so that he may "listen and engage directly with the mediators." Reportedly, mediation so far has been "encouraging," but requires 3M senior leadership to push ahead per the judge's order. Attendance of the CEO will ensure that 3M's board will have "firsthand knowledge of the current state of the negotiations" when evaluating any settlement offer. The lawsuits brought by veterans and members of the military allege that 3M's combat arms earplugs were defective. The company utilized bankruptcy of its subsidiary Aearo Technologies LLC, which manufactured the earplugs to try resolving the cases. 3M had opposed efforts to renew global mediation efforts in Florida federal court while Aearo's bankruptcy case is pending. 3M states it continues to believe that Aearo's bankruptcy provides a better option for resolving the earplug claims "more quickly, with more certainty and with more balanced recoveries among claimants." Aearo's bankruptcy strategy has been fiercely opposed by plaintiffs, who said that 3M was merely trying to escape litigation in Florida, following a series of unfavorable legal rulings and trial losses. See story here-- https://money.usnews.com/investing/news/articles/2023-05-22/3m-ceo-must-attend-mediation-in-earplug-litigation-judge-rules

Supreme Court of Florida Amends Mediation Appearance Rule

New language from the Committee on Alternative Dispute Resolution Rules and Policy filed by petition to amend rule 1.720 of the Florida Rules of Civil Procedure becomes effective on January 1, 2012. The revisions pertain to the requirements for the appearance of a party or a party’s representative at a mediation conference. The proposals were in response to the charge to monitor court rules governing alternative dispute resolution procedures and to make recommendations as necessary to improve the use of mediation. This opinion linked below sets forth the changes and requires physical presence of a party unless otherwise stipulated in writing or excused by court order. A representative of an insurance carrier for any insured party who is not such carrier’s outside counsel is deemed to appear if that person has full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation. Additionally, 10 days prior to appearing at a mediation conference, a notice shall be filed with the court and served, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative. Given the nature of the way things transpire today, a rude awakening could be in store for some litigants. See more in the decision and comments: http://www.floridasupremecourt.org/decisions/2011/sc10-2329.pdf

Steve Jobs unsuccessful before death in personal appeal to end Samsung litigation

Samsung has been engaged in international patent wars with Apple over mobile devices, seeking injunctions in several countries regarding phones and tablets. Yesterday's death of Apple co-founder, Steve Jobs, may have ended any hope that CEOs (as the true decision makers in these disputes) could end them short of the courthouse. In fact, as Jobs lay dying, Samsung apparently filed two lawsuits in Europe to block the sale of the newly launched Apple iPhone 4S. While Jobs already personally tried to fix the situation by calling Samsung in an appeal to avoid a messy legal battle and to avoid a parts supply problem for Apple's iPad, he failed. This was not done under the formality of a confidential mediation which could have served to set parameters for negotiation and a process by which a facilitator could ease the tension between the parties, while working on achieving a creative solution that would benefit all in a post-PC and now post-Jobs era. Unfortunately, Jobs' death will eliminate at least one avenue to resolution that is utilized by mediators in their negotiation toolbox, which prevents the posturing of litigators and seeks direct dialogue between the head honchos-- face to face. Jobs' successor at Apple, Tim Cook, now might play a role in settling the ongoing technology dispute, but likely lacks the larger-than-life influence of Jobs. See story here: http://tinyurl.com/3gg9rzu