Join me for PMI in Orlando 8/21!

On August 21, 2016, I will be joining my colleagues on an ethics panel at the Professional Mediation Institute at the Orlando Marriott World Center. Our panel will address ethics, professionalism and practices unique to mediation. Common and uncommon problems that arise complicating the settlement process will be discussed as well. Other speakers will address confidentiality, diversity, domestic violence and winning strategies to employ in negotiating a settlement. Top mediators from Florida and around the nation are expected to attend. This event takes place during the WCI360 worker's compensation conference, but is not about that substantive area of law or those types of litigated cases. PMI registration includes access to 16 hours of CME/CLE, so you can fulfill a two-year credit cycle requirement in just one meeting. I have been attending this conference for many years and was last a speaker in 2013 on the subject of commercial mediation. This conference is the same month as the Florida Dispute Resolution Center's annual DRC meeting, but the continuing mediator education is more geared for Circuit-Civil Certified Mediators and continuing legal education practictioners who use mediation to resolve lawsuits. The program has been endorsed by The Florida Bar Alternative Dispute Resolution Section's Executive Council, on which I sit. The theme this year is "Getting the Most out of Mediation: Tips and Tools for Everyone Who Attends Mediation." See more here-- www.pmi360.com/2016-mediation-institute and registration details-- www.pmi360.com/register

Primate Proclivity for Peace?

I recently read with great interest about Frans de Waal's work studying primate behavior in The New York Times Book Review of Are We Smart Enough To Know How Smart Animals Are? Empathy, cooperation and fairness seem like distinctly human traits, but biologist Frans de Waal explains why animals might share those same qualities. He maintains that for centuries, our understanding of animal intelligence was obscured in a cloud of false assumptions and human egotism. A primatologist examining boundary lines between our species and others for thirty years, he is said to painstakingly untangle the confusion through research, revealing a wide range of animal capabilities. He studied prosocial choices in apes, showing yawn contagion, synchronization, consolation behavior, and altrusim. Even after fighting viciously, Chimpanzees reportedly reconcile due to saving a valuable relationship damaged by conflict. In a Ted Talk, he shows video of Capuchin monkeys which demonstrated empathy when there was clear inequity in being rewarded. Evolved morality exists in his opinion, rather than believing our bodies may have evolved from monkeys, but that our brains are their own miraculous and discrete inventions. He argues cognition must be understood as an evolutionary product with what he calls “cognitive ripples.” We tend to notice intelligence in primates because it’s most conspicuous. It looks the most like our intelligence. However, “after the apes break down the dam between the humans and the rest of the animal kingdom, the floodgates often open to include species after species.” See book review here-- http://nyti.ms/1XVmBu0 and Ted Talk here-- http://n.pr/1qksDWZ

Why Can't We All Just Get Along?

Recent shootings by law enforcement caught on video and now snipers taking out police officers have me thinking of the refrain from Rodney King, "Can we all get along?" Though now almost a quarter century ago, it seems like the LA riot events was last time we really had a national debate about police brutality and racial injustice. Peacemakers such as Doug Noll, with whom I've taken courses at the National Academy of Distinguished Neutrals, remind us that neuroscience has established an irrefutable fact: human beings are emotional, not rational. Still, we have a belief that humans are distinguished from all other creatures because of their rationality. To be irrational is to be something less than human. People engaged in peacemaking long assumed that despite the emotions of conflict, people are fundamentally rational. The truth is, we are ninety-eight percent emotional and about two percent rational. Research demonstrates that we must strive to be far more aware of neuropsychological factors of human conflict. Noll believes these factors explain much about conflict behaviors. They also provide insights about new interventions in intractable conflicts. Conflict starts with a problem serious enough to cause anxiety, reflected in a feeling of insecurity. When anxiety or insecurity is first experienced, he says we have a choice between reactivity and reflection. If we do not make a choice, Noll says our default mode is to be reactive. By being reactive, we might reject the problem, give up, or feel inadequate to deal with the problem. If the problem is persistent, we might struggle or exit. As the conflict develops, we perceive it as a threat, and we may blame, attack or withdraw. These behaviors constitute our fear reaction system. If the choice for reflection is made, we have learned to reflect, relate, and relax. The insecurity arising from a conflict situation is recognized as pointing to a pathway of growth towards greater peace and self-realization. The brain's altruistic, cooperative social attachment systems actually allow us to be compassionate, tolerant, and exhibit loving-kindness. Perhaps through this, we can engage in conflict resolution and achieve peace. See more here-- http://bit.ly/29zdOwA and http://timelines.latimes.com/los-angeles-riots/

OneOrlando Fund Consults Neutral

Sadly, one of the roles of a modern full-time neutral in dispute resolution practice is administration of vicitm funds. While we are still reeling from recent events from the Pulse massacre here in Orlando, it is heartwarming to see the outpouring of support and generosity from around the globe. To ensure that funds are dispersed in a timely, accountable and transparent manner, the OneOrlando Fund is apparently consulting with victim fund expert Kenneth R. Feinberg. A professional neutral, he served as the Special Master for the September 11th Victim Compensation Fund of 2001, the Claims Administrator for the One Fund Boston, the Virginia Tech Hokie Spirit Memorial Fund, the Aurora Victim Relief Fund and for the BP Oil Spill Claims Administration as the Compensation Fund Administrator. He opines that the immediate issue is whether multiple funds are competing which there seem to be, as well as individual GoFundMe campaigns. He thinks one fund is always the best way to go, allowing payment processing to be coordinated with a common criteria. He says a calculation of compensation cannot be determined until the aggregate amount is known. Interestingly, he most recently weighed in on Deflategate by filing an amicus brief in that appeal as both neutral and new to the dispute. He asserts in his amicus brief that the enforcement of Tom Brady’s suspension would trigger consequences well beyond sports. He contends it would destabilize the system of arbitration in the Unites States and that it would make it harder for himself and others like to him to carry out their duties. While it will be interesting to see how that appeal goes, for the moment, he is helping Orlando deal with the largest mass shooting in the country. See more here-- http://on.si.com/294OCid and interview http://www.wbur.org/hereandnow/2016/06/17/donations-orlando-distributed and One Orlando Fund (Strengthen Orlando, Inc.) information here-- https://www.oneorlando.org/aboutus.htm

New ESI Order in Palm Beach 7/1

In Palm Beach County, Florida there is a new discovery of electronically stored information (ESI) order waiting for practitioners in cases involving business torts, professional malpractice, antitrust, business transactions, IP, shareholder derivative actions, securities, or trade secret cases. Circuit Court Judge Meenu Sasser of the 15th Judicial Circuit Court has even mandated that within 20 days of the order, the parties are to schedule a “meet and confer” conference which shall occur within 60 days of service of the Order. It is interesting to note that The Florida Bar Civil Rules Standing Committee voted against a federal rules style mandatory meet and confer when I chaired the effort to amend the rules to include ESI. Counsel for the parties are to discuss whether this cases are to be considered complex litigation case, as in Fla. Rule Civ. Pro. 1.201. Topics for the conference include: ESI custodian information; structure of client computer systems, software, devices, and relevant email information; ESI policies; need for an ESI clawback agreement; costs; and whether ESI issues could significantly protract the litigation. Hmm, looks like a call for effective Special Masters or E-Neutrals... See Standing Order effective for new cases starting July 1, 2016 here-- http://15thcircuit.co.palm-beach.fl.us/documents/42596/0/ESI-Order.pdf

Special Master Services Streamline Discovery

Having chaired the effort to amend the Florida Rules of Civil Procedure to include Electronically Stored Information (ESI), I often remind courts, counsel and litigants that neutrals are now an available avenue to resolve electronic discovery disputes. We are prepared to serve as Special Masters (Special Magistrates under the Florida Rules of Civil Procedure) to assist in e-discovery issues in state and federal matters, including: hosting federal Rule 26 “Meet and Confer” sessions; facilitating cost effective, mutually cooperative, and relevant e-discovery programs; procuring Mediated Case Management or Pretrial Stipulations under Florida Rules 1.200 or 1.201; monitoring discovery compliance and outcomes, and adjudicating legal or technical disputes if necessary. In given cases, by agreement, we neutrals can also serve as “e-discovery mediators” or E-Neutrals to conduct negotiated settlement discussions to resolve issues relating to identification, preservation, collection, review, and production of ESI. Early, proactive involvement of an e-discovery special master or mediator educated in the realm of electronic discovery may yield immediate benefits in both the efficiency and economy of litigation, keeping the discovery process on track to producing the best information available for trial or settlement. Our firm just finished a team in camera review of multiple thousands of documents hosted on kCura's Relativity 9 platform for the Complex Business Litigation Division of the Ninth Judicial Circuit Court in Florida, where I once served as a General Magistrate under Chief Judge Belvin Perry. These efforts are cost effective and can save time, as well as aggravation of the judicial officer who will later rule on dispositive motions and preside over the case. See more here-- http://www.uww-adr.com/services/e-discovery-services

Next Month Rev. Arb. Code Applies Across the Board in FL

Commencing on July 1, 2016, all arbitration agreements, regardless of their date, will be governed by Chapter 682, Fla. Stat. (2013), The Revised Florida Arbitration Code. At present, the statute does not apply to any arbitration that commenced, or any right that accrued, before July 1, 2013. Pursuant to the revised code which is based on the Revised Uniform Arbitration Act (RUAA), it automatically applies to all non-FAA arbitration agreements entered into after July 1, 2013. For now, it 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. Revision applicability should be of interest to legal professionals enforcing arbitration provisions common to industries throughout Florida, including: construction, consumer, insurance, employment, securities, and commercial contracts. It is also important to note that Florida’s statutes of limitation (SOL) 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 recently rejected arguments that the legislature did not intend to incorporate arbitrations within its reference to proceedings such that an arbitration proceeding is an “action” broadly defined to encompass any “civil action or proceeding." 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 revised statute here-- bit.ly/1SZFP1g and Fla. S. Ct. decision on SOL in arbitration here-- http://caselaw.findlaw.com/fl-supreme-court/1631334.html