FL Senate Mediation Authority Bill

A new bill for the 2018 Florida legislative session has been introduced requiring that insurance carrier representatives who attend circuit court mediations have specified settlement authority and the ability to immediately consult by specified means with persons having certain additional settlement authority and to be available by telephone. Senate Bill SB 1034 would create Section 44.407, Florida Statutes, which would allow sanctions for insurance carriers that fail to comply with good faith requirements of mediation (a term never truly defined). Additionally, Section 44.408 would compel certain third parties to attend mediation upon the request of the mediator or be available to teleconference, though not required to pay any mediation fees by participating. Also, Section 44.409 would limit information that may be included in the mediator’s report to the court. The new law would allow only the following reporting: (a) A complete agreement was reached (b) A partial agreement was reached (c) No agreement was reached. If a partial agreement was reached which eliminates claims or parties from the litigation, a list of such claims and parties may be provided, but no additional information may be disclosed. If passed, and signed by the governor, this act would take effect July 1, 2018. The Executive Council of The Florida Bar Alternative Dispute Resolution Section on which I serve is looking at this legislative development and will take up the issue at its January, 2018 meeting in Orlando. See proposed language filed here-- http://bit.ly/2zgh9hN and ADR Section info at www.FlaAdr.org

Apple and Samsung CEOs to mediate Patents

CEOs of Apple and Samsung are set to mediate at a San Francisco federal courthouse tomorrow in the U.S. Northern District of California case of Apple, Inc. v. Samsung Electronics Co., Ltd. The U.S. Court of Appeals for the Federal Circuit found last Monday that the district court erred in deciding that Apple failed to show that it was likely to succeed on the merits, which means Apple may yet press for an injunction to block the sale of Samsung tablets. While the trial court considers the claims, Apple's Tim Cook and Samsung's Choi Gee-sung have been directed by a federal judge to appear for a court-supervised mediation. Apple and Samsung are bitter rivals in the electronics marketplace. While Samsung's smartphones and tablets run Android and compete with Apple's iOS products, Samsung is also a key component supplier to Apple. Apple has accused Samsung of infringing on the iPhone and iPad through products that run on Google's operating system, and Samsung has counter-sued on claims that Apple infringed its patents. The case is set for trial this summer. Magistrate Judge Joseph Spero will preside over the high-stakes IP mediation. I blogged about this case last fall, when Steve Jobs died. I still believe that a face to face meeting of the ultimate decision makers can benefit these companies and allow them to move on together in the mobile marketplace. See articles - http://trib.in/K7ETUJ and http://reut.rs/JBQJ8N

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

Big enough guns with full authority?

In a pending patent infringement case between Oracle and Google, the judge recently ordered the parties to identify "top corporate executives" to participate in mediation. It seems the litigation is now focused on who those folks would be, with Oracle now complaining that none other than Google Android's very developer is not good enough! Google offered to send SVP Andy Rubin of mobile to meet Oracle President Safra Catz to resolve Oracle's patent lawsuit over Java code incorporated into Android. Oracle objects that Rubin is not senior enough to make the decisions needed for a successful mediation and claims he actually caused problem in the first place by infringing. In an unusual move involving the court in mediation participants before the conference, a letter was written to the judge, complaining of Google's corporate representative choice. It seems reminiscent though not a corollary of Apex-type deposition fights. Should a judge be in charge of what decision makers attend mediation or does that necessarily affect self-determination of the parties? Is a party's designated representative even subject to challenge in a seemingly premature manner, when the mediation has not even commenced and no issue on authority has been properly raised? See story: http://bit.ly/mPH2gN