Frank Lloyd Wright Preservation Mediation

A Frank Lloyd Wright-designed home near Camelback Road in Phoenix was bought a few years ago by the David & Gladys Wright House Foundation while facing demolition. However, a battle with neighbors has arisen over plans to host events and build an events center at the property just south of Camelback Mountain in a wealthy Phoenix enclave. The former mayor there strongly supports preserving the mid-century home Frank Lloyd Wright designed for his own son and daughter-in-law before the architect's death in 1959, and wants to see a resolution of the dispute with concerned neighbors. Supporters want the Wright House to be open for public viewing as a historic site but are sensitive to concerns about events, traffic and noise in the residential neighborhood. Reportedly, they are looking for an independent knowledgeable mediator that all parties agree upon in order to bring about a resolution. This story caught my attention because we have gone through similar disputes in the Orlando suburb of Winter Park, where I was raised. James Gamble Rogers II was a noted architect here and a significant historic property designed by him, Casa Feliz, faced the threat of demolition. More than a million dollars was raised in private donations to save and restore the home which required moving the house. The event became a media spectacle, as the 750 ton behemoth, balanced on 20 pneumatically leveled dollies, rode the 300 yards across the street to its new home. Once the house was positioned in its new location, complete restoration began. Full disclosure: I served on the board of directors for a time and remain a friend of the Rogers family. Today, Casa Feliz serves the community as a historic home museum and venue for public cultural, private party and business events. Its rescue even inspired the saving of another of home, known as the Capen House, which was recently floated across Lake Osceola to a new location. See story here-- http://bit.ly/1DkWIsy and information on Casa Feliz here-- http://www.casafeliz.us and the Capen House here-- http://preservationcapen.org/

Join me for the Masters Conference NYC

Please join me this month as I've been invited to speak about streamlining electronic discovery at the Masters Conference for Legal Professionals on Tuesday, July 21, in New York City. Having chaired the recent effort to amend Florida Civil Procedure Rules to include e-discovery and previously taught for the state’s Advanced Judicial College, I'll join other industry experts in taking attendees through the life cycle of a complex case. We'll be focusing on fixing problem areas for a more cost-effective approach in a panel discussion titled “How to Streamline E-Discovery,” which runs from 11 am to noon. All eight of the conference’s sessions will take place at New York’s famed Harvard Club. The conference will concentrate on e-discovery, data protection, records management and related topics. “Whether you’re dealing with e-discovery in a new, socially networked world, find your company expanding globally and thus facing international discovery issues, or planning for the future of e-discovery in your firm or company, you know there’s a divide between what is in practice today and where your firm needs to be in the near future,” according to conference organizers. “Legal professionals must develop strategies for spanning this e-discovery divide before it expands further across traditional borders, whether physical or technical.” My emphasis will be on avoiding discovery disputes in the courts through the use of E-Neutrals, Mediated Case Management and Special Masters in culling the universe of information available to parties, in order to let them focus back on the merits of the claims and defenses. For more information about our panel at the Masters Conference, please visit-- http://themastersconference.com/agenda/how-streamline-ediscovery and for the full agenda in New York, see-- http://themastersconference.com/events/new-york-city

BP Settlement

Over the course of the next 18 years, British Petroleum (BP) will pay Florida $3.25 billion or more for its role in the biggest offshore spill in U.S. history. The Deepwater Horizon drilling rig in the Gulf of Mexico exploded in 2010, killing eleven men aboard and spewing crude oil from the sea floor for almost 90 days. Along with Florida, some $18.7 billion will be paid to Mississippi, Louisiana and Alabama. BP already spent $42 billion in cleanup efforts, penalties and payouts for people whose livelihoods were directly affected by the spill. For businesses and individuals, about $5 billion was paid out. The accident led to thousands of lawsuits against BP, as well as Transocean, the rig’s owner, and Halliburton, which provided contract services for the project. Last week's settlement was the largest of BP’s agreements since the spill. BP agreed in 2012 to plead guilty and pay the government $4 billion to resolve a criminal case. BP also agreed that year to pay another $525 million over allegations of understating the size of the spill. The company also reached an estimated $10.3 billion settlement with most Gulf area residents and businesses harmed by the spill who did not opt out. That deal will probably cost more because claims that haven’t been fully processed. The settlement didn’t cover banks, casinos, insurance companies and businesses or residents in large swaths of Texas and Florida. It also didn’t include shareholders or businesses blaming BP for the Obama administration’s moratorium on deep-water drilling in the Gulf following the spill. BP has increased the amount set aside to pay for the spill to $53.8 billion which may not be enough. Investors filed a securities-fraud lawsuit, claiming BP downplayed the disaster, which goes to trial next year in Texas. A class action covers investors who bought BP’s U.S. shares from a period days after the blowout. BP will ask the U.S. Court of Appeals in New Orleans this month to block them from suing as a group, which could delay the case. Investors are seeking as much as $2.5 billion, according to court filings. BP's defense seeks to deny responsibility for those damages because the U.S. government ordered and extended the drilling ban for months. See stories here-- http://bit.ly/1H5iMIs and http://bit.ly/1NLxrOg

The Florida Bar ADR Section Turns 5

The ADR Section of The Florida Bar, now in its fifth year, will meet at the annual convention in Boca Raton tomorrow, to continue advancing new programs and opportunities for continued growth and participation in the section. The ADR Section was established in 2010 to provide a forum for lawyers interested in alternative dispute resolution and to provide a forum for discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. The ADR Section will keep the Bar membership 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. During The Florida Bar’s 2014 Annual Convention, the ADR section hosted a working meeting for ADR section members. Those in attendance nominated new executive council members. I was pleased to be nominated, having already founded and chaired the ADR Committee of the Orange County Bar Association in Orlando. New members elected to the ADR executive council included my Upchurch Watson White & Max Mediation Group (UWWM) colleagues, Robert A. Cole and Michelle Jernigan, who edits our section newsletter. Additionally, ADR section committees were established that plan and execute section activities, events, and programs to benefit section members. Among the busiest were: Website, Newsletter, and Legislation. The Website Committee, which I chaired, worked with the executive council and a vendor and launched the new ADR section website, www.fladr.org. The immediate goal is to make the ADR section and its benefits more accessible to all Florida Bar members, which will provide information on available CLE programs and links to MEAC opinions. In addition, each of the section’s News & Tips can be viewed from the website. The CLE committee plans to host programs with other Florida Bar sections that will not only benefit members of the ADR section, but all members of The Florida Bar. We recently presented a June UWWM webinar on issues relating to "Other ADR" in Florida with incoming ADR Section Chair, Bob Hoyle, who plans to present additional webinars on ADR through the section this year. The ADR Section will also present a seminar on mediation and arbitration today at the 2015 Florida Bar Annual Convention. For additional information on how to join the Alternative Dispute Resolution Section, visit the ADR section website-- www.fladr.org

Arbitration Questions

This week, perhaps because of the recent depiction of an arbitration on a couple of episodes of HBO's popular Sunday night show, Silicon Valley, I've been getting some queries on the process. One question was whether confidential matters could be disclosed when the arbitrator renders detailed findings of fact and conclusions of law in a reasoned award. Often we are asked not to provide reasoned awards for this purpose. Confidentiality can be preserved is through the use of confidentiality agreements or by including liquidated damages clauses within the arbitration provisions of the subject contract itself. Parties subject to such an arbitration clause agree that they would be entitled to specified damages for breach upon disclosure of information designated as confidential. Another topic that arose was whether there is a right to appeal an arbitrator’s award as one might a judgment rendered in a trial court. Under the Federal Arbitration Act (FAA), a court must confirm an arbitration award except in limited circumstances. The FAA provides few grounds for vacating an arbitration award. In fact, the U.S. Supreme Court has confirmed only a handful of exclusive means for vacating an award under the FAA. These are limited to narrowly defined procedural irregularities and are difficult to prove, except in egregious cases. A few courts have vacated awards based on review of an arbitrator’s “manifest disregard of the law,” but federal circuits remain split as to whether that constitutes valid basis for independent review. However, appellate review under the American Arbitration Association's (AAA) recent optional rules is now available. The rules provide parties with a streamlined, standardized review of arbitral awards. AAA maintains this appellate rubric remains consistent with the objective of an expedited, cost effective and just arbitration process. An appellate arbitral panel applies a standard of review more expansive than that allowed by existing federal and state law in vacating awards. This process was really developed for large, complex cases where parties heavily value the ability to appeal. Parties may use these rules with agreement by contract or stipulation. Appeals are only permitted on the grounds that the underlying award is based on errors of law that are material, prejudicial or is made on clearly erroneous determinations of fact. Generally, AAA appeals will be determined upon the written documents submitted by the parties, with no oral argument, and completed in about three months. Interestingly, the parties may apply the rules whether or not the underlying award was conducted pursuant to AAA or International Centre for Dispute Resolution (ICDR) rules. See rules here-- http://bit.ly/1cDPGXy

Medicaid Mediation

In an unusual move, a federal judge denied the Florida Governor's request to order mediation with President Obama's administration over federal hospital funds for the Low Income Pool or LIP. Rick Scott is suing the Obama administration, alleging it is withholding federal hospital funds because Florida won't expand Medicaid. He asked a judge this week to compel mediation, but the Obama administration responded that they have been engaged in ongoing and productive discussions and that mediation could delay a final decision. It is alleged that the Obama Administration violated the U.S. Constitution by threatening to withhold Low Income Pool dollars if Florida did not expand Medicaid under the new federal healthcare law. Gov. Scott, Florida Attorney General, Pam Bondi, and the Agency for Health Care Administration are the plaintiffs in the lawsuit. Secretary of the U.S. Department of Health and Human Services and the acting administrator of the Centers for Medicare and Medicaid Services, are the defendants. The Low Income Pool program is a supplemental Medicaid financing program. The federal government initially approved an extension for three years, but the Centers for Medicare and Medicaid Services then announced it would not extend the Low Income Pool beyond June 30, 2015. Florida's legislature is in special session because it was unable to pass a budget during the regular session over whether LIP dollars should be included. The Florida Senate budget is $4 billion more than the House’s, including both LIP and Medicaid expansion that the House didn’t in its own proposed budget. The federal government advised Florida that it can expect to receive $1 billion in LIP funding for the 2015-16 year and $600,000 in the 2016-17 year. Gov. Scott claims the legislature has no final approval figure and that such delay is preventing lawmakers from completing the budget. The administration has reportedly given Gov. Scott a tentative decision to extend the funds for two more years at a much lower price. Gov. Scott wants to finalize the state budget by June 30th to avoid a state government shutdown. See stories here-- http://bit.ly/1GC9PME and http://bit.ly/1C31Qky

Join me for UWWM's "Other ADR" CLE June 18th

This month, along with my Upchurch, Watson, White & Max colleagues and a special guest, we'll explore major changes being proposed by The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy in our free webinar. This webinar at noon on Thursday, June 18, is set following The Florida Bar Alternative Dispute Resolution Section and formal commenters to "Other ADR" proposals at oral argument this week the Florida Supreme Court. Incoming Chair of the ADR Section, Bob Hoyle, will share highlights of his presentation and the reception of rules by the bench at oral argument set in this matter. See more information on these rules here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute and be sure to tune in here-- http://www.wfsu.org/gavel2gavel/live.php As CLE presenters, we will review the perceived potential outcome based on this oral argument, as well as explain the new rubric for use of these added settlement techniques. All three presenters-- Lawrence Kolin, Bob Hoyle and Michelle Jernigan-- are members of The Florida Bar ADR Section's Executive Council and will bring special insight to the debate over proposed amendments to the Civil Procedure Rules and 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. This CLE webinar is geared toward litigation practitioners who mediate frequently, as well as mediators who may be eligible for CME. After registering at-- https://attendee.gotowebinar.com/register/8638477297530214914, you will receive a confirmation email containing information about joining our upcoming GoToWebinar program. Look forward to having you join us and if not, the program will be available for replay at-- http://www.uww-adr.com/downloadable-webinars, along with our other CLE programs.