Other ADR Rules Rejected by Fla. S. Ct.

Last week, the Supreme Court of Florida ruled on the so-called "Other ADR" case that underwent oral argument this past summer on rule amendments proposed by its own ADR Rules & Policy Committee. This effort was opposed by myself and other members of the ADR Section Executive Council for myriad reasons. The stated purpose-- to establish a set of uniform rules and standards of professional conduct applicable to any dispute resolution process selected by a court for which no rules exist-- was not the issue. Though this effort was supposedly intended to instill and promote public confidence in the use and participation in such processes; that was not the problem either. The ADR Rules & Policy Committee believed the proposed rules and standards of professional conduct would increase the use of ADR, increase party self-determination in the selection of an ADR method or methods, and provide safeguards for parties selecting ADR neutrals performing services for ADR processes for which no other standards of professional conduct exist. Perhaps, but the real defects were in the inconsistencies and lack of clarity in the actual language, which failed to address things like confidentiality and conflicts. The proposal stated the public’s use, understanding, and satisfaction with an Other ADR Process could only be achieved if neutrals embrace the highest ethical principles, but most professional ADR practitioners already have to abide by one or more set of established standards. The ADR Rules & Policy Committee claimed that the time is ripe for revising the procedural rules to address court referral to all types of emerging ADR processes. Discipline was left to the trial judges under the proposed set of rules. If, in the future, rules or standards of professional conduct are promulgated for a process, these rules and standards would then be inapplicable to that new process. In response to the changes, there were several strong criticisms filed, including formal comments by Civil Rules Committee and ADR Section of The Florida Bar, as well as from the Sixth and Eighth judicial circuits and other interested parties. In its per curiam opinion, the Florida Supreme Court declined to adopt the ADR Committee’s proposals: "Given the substantial criticism, alleged deficiencies in the proposals, and other issues raised at oral argument in this matter and in the comments received, we conclude that the time is not yet ripe for rules addressing ADR processes other than those already identified and governed by current court rules." See opinion here-- http://www.floridasupremecourt.org/decisions/2015/sc14-1852.pdf

Mediation Week 2015

Since 2011, the American Bar Association (ABA) has declared the third week of October “ABA Mediation Week.” The ABA events bolster efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR), which have traditionally celebrated conflict resolution during October. According to the ABA, Mediation Week celebrates strides made in institutionalizing mediation as one of several dispute resolution processes. For many years, Florida has led the field of alternative dispute resolution which has grown in acceptance, especially as litigation has become more costly and lengthy with electronic discovery. There is certainly wide recognition that the majority of cases are resolved outside of the traditional adversarial process. Litigants, their attorneys and the judges they appear before routinely embrace multiple paths to settling lawsuits out of court, including mediation. The theme for this year’s ABA Mediation Week is: Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future. "As lawyers and mediators, we understand both the challenges and rewards of helping parties in conflict reach an agreement by getting past differences in positions, by understanding each other’s perspectives better, and by finding ways to get their important interests met while staying true to their values and belief systems." Programs held during ABA Mediation Week provide neutrals, advocates and policy makers with inspiration and tools necessary to bridge the gap that often prevents amicable resolution of disputes. This year’s theme seeks to recognize the past, present and future of mediation. Read more here-- http://www.americanbar.org/groups/dispute_resolution/resources/mediation_week_toolkit.html

Pres. Carter to Conduct MLK Mediation

Martin Luther King, Jr.’s heirs wish to settle a lawsuit over the ownership of his 1964 Nobel Peace Prize and his famed traveling bible. In Atlanta, a Fulton County Superior Court judge set a mediation deadline that passed last month and previously granted a stay in the case so that the King's daughter could negotiate a deal with her brothers. According to reports, former president, Jimmy Carter, has now agreed to serve as the King siblings’ mediator the ongoing court battle over sale of their father’s possessions. Brothers Martin Luther King III and Dexter Scott King are suing sister Bernice King over the ownership of the fifty-year-old Nobel Prize and King Bible, apparently used and signed by President Obama during his second inauguration. Bernice King has argued the items are sacred and should remain with the family. King’s estate is controlled by his sons who already sought an order for their sister to surrender the items which are in her possession. In a board of directors meeting last year, they voted 2-1 against Bernice King to sell the two valuable artifacts to a private buyer. Martin Luther King, Jr. was assassinated in 1968. His widow, Coretta Scott King, died in 2006. Yolanda King, the eldest King child, died in 2007. Originally, as previously covered by this blog, the case was set to go to trial last February. Sibling rivalries are among the toughest challenges for a mediator to solve. There are times when celebrity adult children can navigate their own conflict, but other times require a process affording for the airing of grievances in a non-public forum, such as mediation. President Carter, who recently revealed to the world that he’s begun treatment for cancer that has spread from his liver to his brain, said he is honored to be working with the King family in an effort to resolve the outstanding legal issues relating to their legacy and believes he will be able to resolve the difficult dispute once and for all. See story here-- http://bit.ly/1VDaW0u

ODR Adopted in EU

Online Dispute Resolution or "ODR" has been a niche area for resolving merchant disputes in North America. Our friends across the pond have implemented this technique as of last summer on the heels of a more traditional ADR directive. The new ODR Regulation will enable consumers to bring claims easily, intending the result of a unified EU approach to consumer disputes. The cost of the ODR procedure should be nominal, further reinforcing the aim of the EU to encourage the free movement of goods. However, use of the new procedures will not be mandatory and the procedures will not apply to traders established outside the EU that sell there. Despite the absence of an obligation on the parties to engage in ADR, traders are obliged under the prior EU ADR Directive to provide consumers with certain information relating to ADR entities and ADR schemes which are relevant to their business sector. ODR Regulation further requires that online traders provide a point of contact, as well as a link to the ODR Platform. The ODR Platform offers a single point of entry to EU consumers and traders seeking to resolve disputes out of court which arise from online transactions. Complaints can be filed electronically in all official languages of the EU. The ODR Platform will subsequently transmit the online complaints to the ADR entity competent to deal with the specific dispute. Finally, the ODR Platform provides its own case management tool that enables the ADR entity to conduct the ADR procedure through the ODR Platform. It should be interesting to see the statistics on use and settlement once ODR has taken hold in the EU. See more here from Morrison & Foerster-- http://bit.ly/1O86RSZ

Eminent Domain Mediation

Just having conducted an eminent domain mediation this week between a municipality and property owner, I was reminded of dispute resolution features contained in the statutory process here in Florida codified in Chapter 73, Florida Statutes. Under this section, at any time in the presuit negotiation process, the parties may agree to submit the compensation or business damage claims to "nonbinding" mediation. It is interesting this language is used as a qualifier. Though the process is certainly designed for self-determination of the outcome, any agreement reached containing the formalities referenced below would likely be binding when reviewed by a court. Under this process, the parties shall agree upon a mediator certified under Chapter 44, Florida Statutes. Records used to substantiate business claims include federal income tax returns, tax withholding statements, state sales tax returns, balance sheets, profit and loss statements, state corporate income tax returns for five years preceding notification attributable to the business operation on the property to be acquired, and other records relied upon by the business owner as evidence. In the event that there is a settlement reached as a result of mediation or other mutually acceptable dispute resolution procedure, the agreement reached shall be in writing. The written agreement provided for in this section shall incorporate by reference the right-of-way maps, construction plans, or other documents related to the taking upon which the settlement is based. In the event of a settlement, both parties shall have the same legal rights that would have been available under law if the matter had been resolved through eminent domain proceedings in circuit court with the maps, plans, or other documents having been made a part of the record. As such, the property or business owner who settles compensation claims in lieu of condemnation shall be entitled to recover costs in the same manner as provided by statute. Evidence of negotiations or of any written or oral statements used in mediation or negotiations between the parties under this section is inadmissible in any condemnation proceeding, except in a proceeding to determine reasonable costs and attorney’s fees. See more here-- http://bit.ly/1L8bKuw

EEOC Seeks Carve-outs in Employment Arbitration Clauses

The Equal Employment Opportunity Commission (EEOC) processed nearly ninety thousand charges last year. Reportedly, the EEOC will not hesitate to take action against employers that prevent employees from filing EEOC claims, which includes mandatory arbitration agreements. Such agreements should contain a carve-­outs that expressly allow employees to file EEOC charges, as one franchisee of major restaurant chains in Florida recently learned. The company had a mandatory arbitration provision with no exception for the filing of administrative charges by employees with the EEOC. The EEOC sued, alleging such agreements constitute a pattern and practice of resistance to rights secured by Title VII of the 1964 Civil Rights Act. Thus far, a federal court ruled that the EEOC was authorized to file suit against employers in the absence of an underlying charge of discrimination. The court also ruled that the EEOC had standing to sue, itself, even if not a party to the arbitration agreement in question. In what was perhaps a subsequent remedial measure, the company already amended its agreements. Interestingly, the EEOC is on record in strong support of voluntary alternative dispute resolution programs that resolve employment discrimination disputes in a fair and credible manner, and are entered into after a dispute has arisen. It has even recognized that while even the best arbitral systems do not afford the benefits of the judicial system, well-designed ADR programs, including binding arbitration, can offer in particular cases other valuable benefits to civil rights claimants, such as relative savings in time and expense. However, it seems depriving employees of their right to file EEOC administrative charges will not be tolerated by the current EEOC, even if the employees will ultimately have to arbitrate their claims rather than litigate them in court. See more here--http://onforb.es/1KRSqS9 and http://www.eeoc.gov/policy/docs/mandarb.html

Cosby Confidentiality

Last summer, The New York Times published an article referring to the full transcript of Bill Cosby's 2005 deposition in Constand v. Cosby. Andrea Constand sued Cosby for sexual assault and agreed to a confidential settlement in 2006. Portions of the deposition transcript were previously released by a U.S. District Judge in the Eastern District of Pennsylvania, when referenced in an unsealed court document. Cosby's lawyers portrayed confidentiality as what induced them to make a settlement with his accuser in the first place. Court records can be sealed if there is good cause, which generally means the harm caused by making information available to the public is greater than its benefit. However, with the strong presumption in favor of public access to court documents, it is incumbent on parties and their attorneys to seek protection before filing confidential information in the court record. The federal judge denied motions from both sides over the release of the transcript from that decade-old deposition in the sexual-assault lawsuit against Cosby. Last week, decisions were issued denying Cosby's motion for leave to take discovery on how the transcript was released, as well as denying a motion for sanctions against Cosby's attorney for trying to take discovery. After the release of the full transcript, it reportedly became clear in court documents that a court reporting service provided the document to the press under the impression that it was a publicly available document. Cosby's lawyers alleged the release breached the confidentiality conditions of the settlement agreement. Interestingly, however, the presiding judge said such limitations were set forth in the settlement agreement, not in a court order and therefore, the court cannot conclude whether the disclosure would constitute a violation of of the parties' confidentiality agreement. See more in full story here-- http://bit.ly/1VNnEMe