FLADR.org is new ADR Section Website

The ADR Section of The Florida Bar has launched its new website at www.FLADR.org. The ADR Section provides a forum for lawyers practicing in alternative dispute resolution, including discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. Any member in good standing of The Florida Bar interested in the purpose of the section is eligible for membership upon application and payment of $35 in addition to the regular annual Bar dues. The ADR Section keeps Bar members informed and updated regarding legislation, rules and policies in connection with mediation and other ADR processes and the responsibilities they impose on mediator and arbitrator members, as well as provide quality continuing legal education programs. I am pleased to have chaired the initial website effort and thank our Executive Council for their effort in creating content and launching our young section’s website-- as well as, Lani Fraser, Bar Liaison. We invite every member to utilize the resources there which include MEAC opinion links, the ADR News & Notes newsletters, and CLE postings. Visitors may also provide us with suggestions on how we can improve the site and our section. Please use the Contact page to provide us with your thoughts and recommendations. We hope you find it informative and helpful. So now go and check out www.FLADR.org

Guess Who’s Coming To Mediation - Next Thursday 2/19 at Noon!

Register for our free Upchurch Watson White & Max CLE webinar: "Guess Who’s Coming To Mediation" February 19. 2015 at noon. UWWM has applied for 1.0 hour General Credit (50 min) CLE from The Florida Bar. Program Speakers include distinguished UWWM mediators: Michelle Jernigan, Lawrence Kolin, and Dominic Brandy. At this unique online seminar, designed to increase or maintain the attorney’s professional competence and skills as a lawyer, you will be exposed to Florida rules under the topic of attendance and authority at mediation. Effective speakers in the areas of mediation certificates of authority and local rules, and use of technology for attendance will engage the audience and inspire conversation and questions on the related topics. The seminar is geared toward litigation practitioners whose clients utilize recognized processes in Florida’s courts to resolve cases, as well as mediators and arbitrators who may be eligible for CME. Michelle Jernigan will serve as our Moderator and review recent state rule changes for certifying attendance under Rule 1.720, FRCP. This rule redefines party attendance/authority and significantly, requires that the parties file a “certification of authority,” 10 days prior to appearing at a mediation conference, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by the amended rule. Lawrence Kolin will continue the discussion of appellate attendance rule, Rule 9.720, FRAP and local rules for court annexed mediation in the U.S. District Courts for the MDFL and NDFL and business court. The new language in Florida Rule of Appellate Procedure 9.720 was originally suggested by Kolin and 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. Local court rules for the Middle and Northern Districts of Florida will also be covered. Finally, Dominic Brandy will outline of new rule in U.S. District Court for SDFL and requirement for court approval, if variations are required. Unless excused in writing by the presiding Judge, all parties and required claims professionals (e.g., insurance adjusters) shall be physically present at the SDFL mediation conference (i.e., in person if the party is a natural person or by personal attendance of a corporate representative if the party is an entity) with full authority to negotiate a settlement. The mediator shall report non-attendance to the Court. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court. A Question & Answer session will follow the webinar presentation. Information on panelists at http://www.uww-adr.com/webinar/guess-whos-coming-to-mediation and link to your registration here--https://attendee.gotowebinar.com/register/628144760073036802 so sign-up now!

ADR Rules & Policy Responds to Comments on ADR Process Rules for which No Other Standards Exist

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. Comments were filed at the end of last year to which Committee Chair, Hon. William D. Palmer, Fifth District Court of Appeal has responded, stating the new rules and standards provide basic rules intended to provide some level of guidance to practitioners and protection to consumers for ADR processes for which no guidance or protections currently exist. Current ADR processes which have promulgated rules and standards would not be subject to these rules. According to the committee's response, some of the "Other ADR Processes" are currently authorized in statute (such as Voluntary Trial Resolution) and others are being utilized by courts and parties with no particular statement of authority (such as Early Neutral Evaluation). The ADR Rules and Policy Committee seeks to encourage expanded and innovative use of ADR processes without fear of placing parties in jeopardy. The committee feels there is no way of knowing what Other ADR Process will be selected or created by parties or the court, and so there is no way to suggest specific qualifications, certifications, definitions or an appropriate disciplinary process. Due to the unknown nature of which process may be selected, the committee feels it must be up to the court ordering the process to establish some guidance for the process. With regard to confidentiality, the committee states there are many ADR processes for which confidentiality is neither appropriate nor expected. The committee did agree to modify defining a neutral as follows: an impartial third party who is not predisposed to the resolution or outcome of the process who participates at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute. The committee concludes that the adoption of new rules may lead to experience necessary for novel ADR processes to gain popularity, after which time the courts and/or legislature may have confidence to adopt more specific rules for those utilized successfully over a period of time. It is unclear whether the Supreme Court of Florida will hold oral argument on this proposal. See more in filings for Case No. SC14-1852 at http://www.floridasupremecourt.org

Register for Guess Who’s Coming To Mediation

Join us next month for our next Upchurch Watson White & Max Webinar: "Guess Who’s Coming To Mediation?" February 19. 2015 at noon. UWWM has applied for 1.0 hour General Credit (50 min) CLE from The Florida Bar. Program Speakers include distinguished UWWM mediators: Michelle Jernigan, Lawrence Kolin, and Dominic Brandy. At this unique online seminar, designed to increase or maintain the attorney’s professional competence and skills as a lawyer, you will be exposed to wide ranging rules under the topic of attendance and authority at mediation. Effective speakers in the areas of mediation certificates of authority and local rules, and use of technology for attendance will engage the audience and inspire conversation and questions on the related topics. The seminar is geared toward litigation practitioners whose clients utilize recognized processes in Florida’s courts to resolve cases, as well as mediators and arbitrators who may be eligible for CME. Michelle Jernigan will serve as our Moderator and review recent state rule changes for certifying attendance under Rule 1.720, FRCP. This rule redefines party attendance/authority and significantly, requires that the parties file a “certification of authority,” 10 days prior to appearing at a mediation conference, identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by the amended rule. Lawrence Kolin will continue the discussion of appellate attendance rule, Rule 9.720, FRAP and local rules for court annexed mediation in the U.S. District Courts for the MDFL and NDFL. The new language in Florida Rule of Appellate Procedure 9.720 was originally suggested by Kolin and 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. Local court rules for the Middle and Northern Districts of Florida will also be covered. Finally, Dominic Brandy will outline of new rule in U.S. District Court for SDFL and requirement for court approval, if variations are required. Unless excused in writing by the presiding Judge, all parties and required claims professionals (e.g., insurance adjusters) shall be physically present at the SDFL mediation conference (i.e., in person if the party is a natural person or by personal attendance of a corporate representative if the party is an entity) with full authority to negotiate a settlement. The mediator shall report non-attendance to the Court. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court. A Question & Answer session will follow the webinar presentation. Information on panelists at www.uww-adr.com and link to your seat here-- https://attendee.gotowebinar.com/register/628144760073036802 so register now!

Dodd-Frank Arbitration

Recently, a federal appeals court ruled that a prohibition on mandatory arbitration does not apply to new causes of action that the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 created to protect whistle-blowers. Congress banned mandatory arbitration in corporate and financial whistle-blower litigation by enacting the Dodd-Frank. With that, employees could no longer be compelled to arbitrate their retaliation claims under the Sarbanes-Oxley Act, the Commodity Exchange Act or the new Consumer Financial Protection Act. Though there is some overlap between Sarbanes-Oxley and newer Dodd-Frank claims, an employee may have no judicial remedy if they are subject to mandatory arbitration and also fail to exhaust the administrative remedies necessary to bring a Sarbanes-Oxley claim. The U.S. Court of Appeals for the Third Circuit, in Khazin v. TD Ameritrade Holding Corp., ruled last month that TD Ameritrade could compel arbitration of a former employee’s Dodd-Frank whistle-blower claim, because he had a written employment contract that required him to arbitrate all employment-related disputes and that was enforceable under the act. The district court had ruled he must arbitrate his claims, but for different reasons. The lower court reasoned that the employment contract predated the passage of Dodd-Frank, but the Third Circuit found on appeal that the Dodd-Frank legislation’s anti-arbitration section expressly amended Sarbanes-Oxley, but did not contain any reference to Dodd-Frank’s own anti-retaliation cause of action. Distinctions between Sarbanes-Oxley and Dodd-Frank could generate further splits of authority in the federal courts if this approach is rejected. See full story here-- http://bit.ly/1z646rA and a copy of the opinion here-- http://www2.ca3.uscourts.gov/opinarch/141689p.pdf

China to get in on ADR

This week, the Supreme People's Court of China said local courts nationwide should find innovative alternatives to litigation in resolving disputes. An official statement urged 50 local courts to better meet people's legal requirements and take a judicial role. Reportedly, the move is in line with the Communist Party of China Central Committee's decision on comprehensively advancing the rule of law, which was released last fall, in order to "perfect pluralized dispute resolution mechanisms that organically link and mutually coordinate mediation, arbitration, administrative rulings, administrative redress, litigation, etc." The 50 courts were directed to innovate in dispute resolution work and lead the way in the reform. The Supreme People's Court is the highest judicial organ in China and is responsible for independently exercising the highest judicial right according to the law and without any interruption by administrative organs, social organizations or individuals. Interestingly, the high court in China is charged with three wide-ranging responsibilities: 1) trying cases that have the greatest influence in China, hearing appeals against the legal decisions of higher courts, and trying cases The Supreme People's Court claims within its original jurisdiction; 2) supervising the work of local courts and special courts at every level, overruling wrong judgements they might have made, and reviewing cases tried by the lower courts; and 3) giving judicial explanations of the specific utilization of laws in the judicial process that must be carried out nationwide. See story here-- http://english.eastday.com/auto/eastday/nation/u1ai8473294.html and the English version of The Supreme People's Court's website: http://en.chinacourt.org

Happy New Year from Orlando Mediator!

It has been almost five years since this blog was created by Orlando Mediator, Lawrence H. Kolin, to explore issues and trends in dispute resolution. In that time, this weblog has become an officially-listed "Blawg" of the American Bar Association's ABA Journal. My full-time alternative dispute resolution (ADR) practice has continually evolved since first becoming certified in 2001 in Circuit-Civil and County mediation by the Florida Supreme Court. I have recently joined the prestigious national ADR firm, Upchurch Watson White & Max, known for facilitating reasonable agreements to resolve difficult issues. I continue to handle resolutions of complex cases in state and federal trial courts, as well as appellate mediation. Though litigation costs remain high, filings have slowly risen as the economy finally recovers, with early settlements still popular in business cases. Pre-suit mediation can be effective if the parties have enough information to evaluate their positions in the potential litigation. Another development has been the advent of electronic discovery in state courts and the struggle by judges and lawyers to get a handle on the necessity and expense of producing and exchanging data in proportion to the amount in controversy. Routine early mediation of these e-discovery issues by an experienced E-Neutral can actually help narrow the scope of electronically stored information (ESI) and return the focus of the parties to the merits of the case. I look forward to another great year of highlighting the current news and latest directions ADR is taking in the 21st Century. Thanks for joining me along the way!