Syria Talks Stutter

Just days after Syrian talks in Geneva began to try and end five years of war, the United Nations mediator called for a temporary pause for three weeks due to differences between government and opposition delegations on the priority of humanitarian issues. UN Special Envoy Staffan de Mistura asked for an immediate implementation of a humanitarian initiative before substantive talks started. He stressed both sides insist they are interested in having the political process begin and set February 25th for the next session. Mediator de Mistura made clear he is under no illusions about the difficulties in ending a war that has killed over 250,000 people, sent over 4 million fleeing the country, displaced 6.5 million internally, and put 13.5 million people inside the country in urgent need of humanitarian aid. Reportedly, he expected posturing, walk-outs and disappointments. However, he was not frustrated, but rather determined, yet realistic. He emphasized the UN cannot allow simple procedural matters to "become more important than actually the results of humanitarian situation of the Syrian people who have been waiting for us to deliver this time, not a conference, but something concrete for them.” Talks between the sides are not face-to-face but indirect, with parties caucusing in different rooms. The International Syria Support Group (ISSG) comprising the Arab League, the European Union, the United Nations, and 17 countries including the United States and Russia, laid the groundwork for the Geneva talks at a meeting last fall. Hopefully, there will be progress to report later in the month. See more here from www.un.org-- bit.ly/1QfpGzz

Appellate Mediation Sanctions for Non-Attendance

Participants and counsel are reminded of the importance of appearance at mediation in a recent opinion of the Fifth District Court of Appeal. In an appeal from a final judgment, Florida's 5th DCA entered an order referring the matter to appellate mediation (a program in which I've participated since 2001). The order specifically stated that representatives of the parties with full settlement authority were required to attend the mediation in person, unless excused from attendance by the court. The order further stated that the failure to appear could result in the imposition of sanctions. At the commencement of the mediation, no representative appeared for appellant which also provided no certification of full authority to settle. Appellees objected to the absence of the representative and to the limited authority of the insurance company representative. The mediation proceeded without a waiver of objections, resulting in an impasse. Rule 9.720 of the Florida Rules of Appellate Procedure (which I helped amend as a corollary of civil procedure rule 1.720) governs appellate mediation procedures and provides that if a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion of a party or upon its own motion, may impose sanctions. The 5th DCA cited in their interim opinion awarding sanctions, previous holdings in Carden & Associates, Inc. v. C.O.D. Trees Partnership, 83 So. 3d 862 (Fla. 5th DCA 2012) and Carbino v. Ward, 801 So. 2d 1029 (Fla. 5th DCA 2001), finding them appropriate for a party's failure to appear at a court-ordered mediation, even though an insurance company representative was present. The court also referenced Mash v. Lugo, 49 So. 3d 828 (Fla. 5th DCA 2010) which held imposing sanctions were appropriate against a party for failing to appear, although counsel appeared who claimed to have full settlement authority. Sanctions in the present case included all fees charged by the mediator, all reasonable attorney's fees and costs incurred in preparing for and attending the mediation, as well as the costs incurred in filing a motion for sanctions. The court reserved the right to impose additional sanctions, including dismissal of the appeal or the assessment of additional attorney's fees and costs. See slip opinion here-- HDE v. Bee-Line, Case No. 5D15-2805 http://www.5dca.org/Opinions/Opin2015/122815/5D15-2805,non-disp.op.pdf

Revised Florida Arbitration Code Reminders

It is important to remind potential parties to state arbitration that the Revised Florida Arbitration Code can still apply to arbitration agreements made before its effective date of July 1, 2013, if all the parties agree. Otherwise, the law existing at the time of the arbitration agreement applies through June 30, 2016. Commencing on July 1, 2016, all arbitration agreements, regardless of their date, will be governed by Chapter 682, Fla. Stat. The statute does not apply to any arbitration that commenced, or any right that accrued, before July 1, 2013. Pursuant to the revised code, it automatically applies to all arbitration agreements entered into after July 1, 2013. Revision applicability should be of interest to legal professionals drafting arbitration provisions common to industries throughout Florida, including: construction, consumer, insurance, employment, securities, and commercial contracts. In regard to application of Statutes of Limitation, we are reminded of the Florida Supreme Court Case of Raymond James v. Phillips, et al., No. SC11-2513 (May 16, 2013) holding that Florida’s statutes of limitation apply to arbitrations. Florida’s SOL time frames are contained in Chapter 95, Fla. Stat. and apply to any “civil action or proceeding.” Fla. Stat. § 95.011 does not expressly define “action” or “proceeding.” The use of this undefined phrase was the subject of significant debate in securities arbitrations a few years ago. Without reference to Florida’s SOL, securities firms, as well as foreign and domestic companies conducting business in this state, were faced with rewriting their arbitration agreements to provide an express limitations period. Because of the uncertainty associated with the enforceability of such provisions, some may have avoided doing business in this state altogether. The Supreme Court of Florida in Phillips rejected arguments that the legislature did not intend to incorporate arbitrations within its reference to proceedings. Likewise, the court found an arbitration proceeding is an “action” broadly defined to encompass any “civil action or proceeding." Writing for a unanimous court, Justice Pariente opined arbitration proceedings are utilized in a wide array of contexts and not applying statutes of limitation would permit parties to wait to bring a claim until documents or witnesses are difficult to locate-- a situation that would significantly increase the time, effort, and expense to resolve a dispute. See more in the statute here-- bit.ly/1SZFP1g and opinion here-- http://archive.law.fsu.edu/library/flsupct/sc11-2513/op-sc11-2513r.pdf

Subway Settlement

Remember "Where's the Beef?" This week, Subway finally settled a multidistrict federal class action suit that accused Subway of defrauding its customers over the length of its bread. Some say the Subway foot-long settlement is short on dough, but Subway has agreed to pay some money and put in place a number of quality-control measures to “help ensure that the bread sold to customers is either 6 or 12 inches long." Subway is requiring that monthly restaurant inspections “include a sampling of the baked bread to ensure it is at least 12 inches long.” Subway fast-food restaurants will use bread-measuring tools that ensure their so-called six-inch and foot-long sandwiches don't come up short. According to a memorandum supporting plaintiffs' unopposed motion for final approval of class action settlement, Subway's parent company, Doctor's Associates Inc., will be required to conduct monthly compliance inspections making sure that the restaurants' bread is the size as marketed. The settlement covers only injunctive relief and does not bar individuals from suing for money damages. Nine name plaintiffs could receive up to $1,000 each. The total payout, including attorney fees, won’t exceed $525,000, according to the terms of the deal. I often encourage parties to explore non-monetary settlement terms that add value to a deal and that couldn't ordinarily be enforced by a court order or eventual judgment by a prevailing party. The remedial measures apparently sunset after four years, so get your real foot-long BMT now! See details here-- http://www.wied.uscourts.gov/mdl-no-2439-re-subway-footlong-sandwich-marketing-and-sales-practices-litigation and here-- http://www.subsettlement.com

Join me 1/19 for Arbitration Backlash CLE webinar

This month, the U.S. Supreme Court issued its third decision in the last four years upholding private-party contracts to arbitrate rather than to litigate disputes. Arbitration, however, continues to be attacked by media and government despite being an effective ADR method to resolve disputes and control the rising cost of trying lawsuits. Federal law supports and governs the practice through the Federal Arbitration Act. To be enforceable, a clause must provide a meaningful opportunity for redress, and courts review contractual provisions for fundamental fairness. Because the litigation system has become so expensive, arbitration is often the preferred forum for disputes involving amounts in controversy for which litigation of claims is uneconomical. Next month, UWWM will feature this topic in its complimentary webinar entitled, Arbitration Backlash. Arbitrators Lawrence Kolin and Brandon Peters, along with our guest Phil Calandrino, will explore the backlash against arbitration and remind attendees of the origins and benefits of this dispute resolution process. This content is designed for trial lawyers who represent clients in arbitration and for attorneys who use arbitration clauses in contracts. Attending our complimentary Webinar will entitle you to 1 hour of General CLE credit, pending with The Florida Bar. After registering, you will receive a confirmation email containing information about joining us Tuesday, January 19, 2016 from 12:00 PM - 1:00 PM EST We look forward to your attendance! See registration information here-- https://attendee.gotowebinar.com/register/5506879070378935041

The French Do It Better? Je dis ça, je dis rien

French consumers must currently bring claims against French companies to court. Though come 2016, French companies offering goods and services to consumers will need to provide mediation mechanisms-- free of charge-- in disputes arising from poor performance of a merchandise sale contract or a service agreement. The new requirements come with implementation of recent EU Directives on alternative dispute resolution for consumer disputes. The rules are applicable to any individual or legal entity, whether public or private, acting as part of a commercial, industrial, non-industrial or free market activity. Both domestic and cross-border disputes are subject to these rules. As such, companies must provide consumers with mediator contact details in a clear and legible manner on their website along with their TOC of sale or services, their purchase orders or any other relevant media. Consumer mediation will be observed, evaluated, and controlled by a new entity called the Commission for the Evaluation and the Control of Consumer Mediation (la Commission d’évaluation et de contrôle de la médiation de la consommation – CECMC). Reportedly, mediation will remain an option for consumers and will not be obligatory. Non-compliance on the part of those parties subject to the rules can be administratively fined up to three thousand Euros for individuals and €15,000 for corporations. See more here-- http://bit.ly/1OdhQvr and http://bit.ly/1JuKjbK

Orlando Mediator Named NLJ Trailblazer

I'm pleased to announce that I've been named as one of only 50 attorneys to be honored as The National Law Journal’s 2015 Litigation Trailblazers. I'll be accepting this award at the inaugural reception of all distinguished recipients in New York City next week. “The National Law Journal proudly recognizes the people who have truly ‘moved the needle’ in facilitating the changing ways that law firms conduct business,” says Kenneth A. Gary, the journal’s vice president and group publisher. “Whether it be technological developments, operational efficiencies, marketing and business development breakthroughs or research – we think this list embodies the spirit that will shepherd and shape modern law firms as a business going into 2016 and beyond.” Only in their second year, the litigation awards recognize top legal professionals who have promoted significant change in the way cases are resolved, using inventive techniques or technologies, bringing unique types of cases to court, or executing novel approaches, according to ALM Media Publisher Tom Larranaga. “They have raised the bar in several meaningful ways and are establishing important new standards as the legal landscape continues to evolve,” he said. Winners last year included David Boies, one of Time magazine’s 100 Most Influential People in 2010, and Ted Olson, who was Boies’ opposing counsel in the Supreme Court case Bush v. Gore and a former U.S. solicitor general. This year’s group includes Barry Richard, also of the 2000 presidential election case, and famed national trial lawyer Billy Gunn. I attribute this win to chairing of pioneering efforts to modernize Florida’s civil procedure rules to include electronically stored information and to my innovative work in ADR, specifically promoting the use of E-Neutrals through this blog and other legal publications. My colleague at Upchurch Watson White & Max Mediation Group, Richard Lord, remarked it is "a great honor reflecting Lawrence Kolin’s serious, deliberate and long-term experience and thought leadership in ADR.” See this week's special Litigation Trailblazer publication from The National Law Journal here-- http://pdfserver.amlaw.com/nlj/flipbook/Litigation_TP2015/Litigation_TP2015.html and a full list of all 2015 Trailblazer & Pioneer category winners here-- https://www.eiseverywhere.com/ehome/150001/342183/ Thanks for your continuing support and readership!