Water Wars

A settlement in an ongoing 25-year water war between Florida and Georgia has not yet been attained, but a move towards compromise was just announced. Special master, Ralph Lancaster, who was previously appointed by the U.S. Supreme Court to help resolve the dispute, said he was delighted to see both the word ‘settlement’ and the word ‘mediator’ in recent status reports, indicating a move to the formal ADR process of mediation. Lancaster already urged attorneys for each state to settle the water wars case amongst themselves, rather than risk an unsatisfactory outcome for all involved. Georgia's Governor set aside $20 million for the latest legal battle pitting Florida’s ailing oyster industry against Georgia’s right to use Chattahoochee River water across metro Atlanta. Florida states that Georgia’s overconsumption of water in the Apalachicola-Chattahoochee-Flint River Basin, which includes Lake Lanier, is creating economic hardship, particularly on the oyster industry in the Florida Panhandle region's Apalachicola Bay. Georgia also seeks to maintain full use of the Flint River and its tributaries for farmers in southwest Georgia. The rivers join at the Florida border, becoming the Apalachicola River. Crucial to Florida's seafood folks is a fresh water-salt water balance for oysters to survive in the Apalachicola Bay. While there's been no material progress on a global settlement since last summer, Georgia now reportedly believes the best way to advance the process is "to engage a mediator acceptable to both sides who can create a framework for formal in-person discussions and periodic exchanges of information specifically directed to settlement.” Florida apparently welcomed the suggestion, along with the special master. See news stories here-- http://on-ajc.com/1NcbBY7 and http://bit.ly/213eZsn

National Love Your Lawyer Day

What do you call 1,000 lawyers at the bottom of...you know the jokes. But joking aside, it's love your lawyer day. Apparently, the idea was first hatched in 2001 by the American Lawyer Public Image Association, a non-profit organization dedicated to promoting the positive public image of lawyers. This is the first year it's been recognized by the American Bar Association's Law Practice Division, which passed a recent resolution to observe the first Friday of each November going forward. I've read some of the press this week covering this day and have seen mostly disdain for the occasion. Lawyers obviously play a prominent role in American cultural life and, heroes aside, their ethical behavior is sometimes reflected poorly in pop culture, television and movies. In reality, lawyers have been some of the most productive members of our society and have had great impact on our American experiment. In regard to the Framers of the Constitution, more than half of the delegates were trained as lawyers. I would venture to say that the importance of lawyers in society cannot be overemphasized. Alexis d’Tocqueville long ago observed in his commentary on law in the United States, that there are few political questions that that do not become, sooner or later, a judicial question. Lawyers in an adversarial system are agents of order in a society that may not otherwise exist without them. Contributions of lawyers are widely unheralded, especially in pro bono work that almost no other profession takes upon itself to deliver. Of course, it has been said that lawyers perform a critical role in the administration of the rule of law under the requirements of justice, namely fair outcomes arrived at through fair procedures. Settling cases within the legal system remains the best way of avoiding conflict among citizens. I just wish the emphasis of this day of recognition had been more on that. See summary of news coverage here-- http://bit.ly/1iHIca4 and ABA resolution here-- https://www.americanbar.org/content/dam/aba/images/abanews/LoveYourLawyerDay.pdf

Cyber Week 2015

It's Cyber Week again! This program focuses on trends in the emerging field of "ODR" or online dispute resolution. Anyone can attend this interesting virtual conference on the future of alternative dispute resolution which is sure to be filled with a wealth of webinars, discussion forums and activities. A content rich website, hosted by the ADRhub-Werner Institute at the Creighton University School of Law in Omaha, contains a variety of webinars discussing the integration of technology and dispute resolution. The link below provides access to registration links for the online educational activities this year. Event organizers encourage visitors to review the entire program to ensure not missing a topic that will meet interests of practitioners considering using technology in dispute resolution processes. Some highlights from the program include presentations entitled: Video Mediation, Power of the e-Apology, and a mobile app demonstration by the developer of Picture It Settled, about which I've blogged before. It seems the topics this year are more domestic focused, as international mediators were more interested in this form of mediation at this juncture last year. Curtailing travel costs can be incentive enough to mediate online, but the efficiency of the software in being able to access negotiations at the user’s convenience seems to be the main feature touted in this modern method of settling lawsuits. Amounts in controversy will likely drive the ODR process to lower value cases with a shorter average duration. Efforts in this area have been around for more than a decade, but I'm still not sure ODR is ready for prime time in larger cases where a human element in decision-making is often intangible without parties participating in person. See more here-- http://www.adrhub.com/page/cyberweek-2015

Joint Sessions and the Use of E-Neutrals in ESI Disputes

I am honored to have been featured in the American Bar Association's Dispute Resolution Section's Just Resolutions eNews during this year’s ABA Mediation Week. The theme was “Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future.” In looking at where we’ve been and what is to come in civil litigation, one can find a confluence in the growth of electronic information and the need for cooperation in gathering such evidence that it necessarily creates. Electronic Discovery is everywhere. Corporations and small businesses alike utilize computer systems to cut costs, improve production, enhance communication, store data and improve capabilities in this world of constant technological development. The prevalence of electronically stored information or ESI and its associated impact on litigation are readily apparent. E-Discovery has become vital to most cases. Virtually all business information and much private party information can be found only in ESI. At the same time, the costs of collecting, reviewing, and producing ESI reportedly have reached proportions that rival the amount in controversy, itself. This piece considers the role of the E-neutral who can facilitate the electronic discovery process in complex cases by helping parties to agree on key issues while together in joint session, enabling them to focus on the merits of their case. See article here-- http://www.americanbar.org/content/dam/aba/uncategorized/dispute_resolution/just-resolutions/kolin_joint_sessions.authcheckdam.pdf

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