Injunction Blocks New CMS Arb Ban

The implementation of a new rule prohibiting federal funds for nursing homes that enter binding arbitration agreements with residents has been blocked by U.S. District Court Judge Michael P. Mills of the Northern District of Mississippi, who found in granting a preliminary injunction that the Centers for Medicare & Medicaid Services (CMS) did not have authority to enact the mandate without statutory authority. In an order sympathetic to residents and their families, he opined the rule by CMS, an agency under Health and Human Services (HHS), did appear to be based on “sound public policy.” However, the court was unwilling to play a role in countenancing the incremental “creep” of federal agency authority beyond that envisioned by the U.S. Constitution. CMS essentially barred any nursing home or assisted living facility that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades. The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close. The order states, “This court believes that Congress might reasonably consider this inefficiency, as well as the extreme stress many nursing home residents and their families are under during the admissions process, as sufficient reason to decide that arbitration and the nursing home admissions process do not belong together.” See order here-- http://bit.ly/2gd06oL or http://bit.ly/2fOYdvi

I Need Your Vote!

Here's an easy warm-up for our national election process. Please choose my Orlando Mediator blog for 'The 2016 Best Legal Blog Contest' put on by The Expert Institute. This blog just celebrated its sixth anniversary. It has already become an officially listed 'Blawg' of the American Bar Association's ABA Journal. The Expert Institute was founded with the objective of developing a smarter way for attorneys to identify, verify, and retain the best experts. They have now nominated and selected this blog as a finalist in the Legal News category, narrowed from a field to more than 500 of the most exciting, entertaining, and informative legal blogs online today. According to the contest organizer, every one of these blogs has earned its spot as a leader in its category. It's time for readers to select the best of the best-- creating the most definitive list of the Internet's top legal blogs and a permanent spot on their Best Legal Blogs page. Readers can submit one vote per IP address. The polls close November 14th so, just to be safe, please vote now and get your friends and associates to do so as well! Thanks for your loyal readership and support. Copy this link, verify you are human, and click thumbs up box to vote-- www.theexpertinstitute.com/legal-blog/orlando-mediator

UPDATE: The votes are tallied and Orlando Mediator took third in the Legal News category and will be permanently listed on the Best Legal Blogs once updated here-- https://www.theexpertinstitute.com/best-legal-blogs/

Water Wars Start On Halloween

Attorneys for the states of Florida and Georgia are to begin arguments on Halloween in the decades-long Water Wars between them. A Special Master whose ruling could influence an eventual U.S. Supreme Court decision to turn down Georgia’s water spigot will begin a trial tomorrow in his home state of Maine. Florida seeks to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin including Lake Lanier to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. The dispute focuses on the river basin which drains almost 20,000 square miles in western Georgia, eastern Alabama and the Florida Panhandle. The Chattahoochee and Flint rivers meet at the Georgia-Florida border to form the Apalachicola, which flows into the bay and the Gulf of Mexico beyond. Ralph I. Lancaster, Jr., the octogenarian Supreme Court appointee, previously advised the states to settle out of court rather than live with a costly decision he stressed neither will like. The states initially tried to mediate the case and chose a mediator whose name was strangely kept secret by Master Lancaster’s order. Status reports filed by the attorneys had indicated meetings between the mystery mediator and high level state officials were continuing before trial, but the parties seem to have reached an impasse. The parties reportedly participated in multiple mediation caucuses to no avail. Except to hear progress reports, Master Lancaster wanted no part of the mediation process, but now will have to try the case himself. In its brief, Florida still seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. Experts will argue the remedy is reasonable water use reduction mechanisms that would mitigate otherwise substantial future harm. After both sides present their evidence and arguments, Master Lancaster will his recommended ruling to the U.S. Supreme Court. The Justices then review his findings and any rebuttals by the states before issuing a final decision likely sometime next year. See news item here-- http://bit.ly/2eYcJ5J and docket here-- http://bit.ly/2aMQVJH

America's Cup Arbitration

This month, America's Cup officials released the 2017 regatta schedule for Bermuda while continuing to remain silent about an arbitration panel decision that reportedly went against organizers and could cost them several million dollars. Team New Zealand is in line to receive a seven figure pay-out after winning a bitter dispute over a breach of contract with the America's Cup Events Authority (ACEA) that reportedly reneged on an agreement awarding Auckland hosting rights of the America's Cup qualifier. After delays of more than a year, an arbitration panel finally assembled last summer to hear the case. It is believed the panel, the make-up of which is still unknown, ruled in Team New Zealand's favor. With blanket confidentiality clauses in place around arbitration, the decision was not publicly released. Since the dispute was lodged, teams have been working on a new timetable which prevents them from launching their boats until the end of this year, making it impossible to reinstate the regatta in Auckland. The competitors voted that all and any detail surrounding any arbitration remain confidential. The decision prohibits teams and individuals from discussing or even confirming the existence of a dispute before the arbitration panel. Doing so could draw sanctions including censure and a fine of up to $1 million. In past America's Cups, quasi-judicial proceedings were conducted with a high degree of transparency as to issues, when they were being heard, and the outcome. Unlike today, previous America's Cup Arbitration Panels even adopted the practice of going a step further and allowed a couple of members of the media to observe the proceedings and report back to a general pool. The defender, Oracle Team USA, will compete in the America's Cup match next summer. The qualifiers will eliminate one of the five challengers. The remaining four will then go into a playoff to determine which team will face two-time defending champion USA. See more here-- http://bit.ly/2fhjikF and http://es.pn/2ecE3tr and http://bit.ly/2fhku7I

Pushback By Nursing Homes On CMS Arbitration Ban

This week, the nursing home industry, consisting of the American Health Care Association (AHCA) and others, filed suit against the Centers for Medicare & Medicaid Services (CMS) within the Department of Health and Human Services (HHS), alleging CMS exceeded its authority and claiming the agency has no authority to regulate the use of arbitration. CMS recently promulgated a rule that prohibits Medicare participating skilled nursing facilities (SNF) from entering into arbitration agreements with residents at their facilities upon admission, no matter how fair or beneficial those agreements may be to residents. The complaint states that the new arbitration ban violates the Federal Arbitration Act (FAA) and exceeds the statutory authority of CMS and HHS under the Medicare and Medicaid Acts, neither of which vests the agencies with the power to regulate alternative dispute resolution procedures. The complaint argues, even if the rule is allowed by law, it is arbitrary and capricious because it would deprive nursing homes and their residents of the benefits of arbitration and result in the siphoning of resources toward litigation costs and away from resident care. The new rule does not prevent residents of a SNF from choosing to enter into arbitration-- it just means the SNF can no longer force the dispute out of the courtroom. However, the complaint contends that parties almost never agree to arbitration in a particular case after a dispute has arisen. See complaint here-- American Health Care Association, et al. v. Sylvia Burwell and Andrew Slavitt Case No. 3:16-cv-00233 http://bit.ly/2dMdKu9 and press release-- http://bit.ly/2ed140y

Mediation Week Professionalism Webinar 10/17

Since I began mediating in 2001, the field of alternative dispute resolution (ADR) has experienced tremendous growth. The recognition that not all cases are well-suited for an adversarial process and that multiple paths exist to achieve justice is increasingly shared by attorneys, judges, and the public. A decade into my ADR practice, in 2011, the American Bar Association (ABA) began recognizing the third week of October as “Mediation Week,” building on the efforts of many other national, state, and local organizations, including the Association for Conflict Resolution (ACR). For this year's ABA Mediation Week, Upchurch Watson White & Max will present its complimentary monthly UWWM Webinar focusing on how to make language and civility work in negotiation. My esteemed colleague, Howard Marsee, with whom I first worked back in 1994, will discuss "The Language of Professionalism in Negotiation " at noon Monday, October 17, 2016. The 75-minute program presented in conjunction with the University of Florida Levin College of Law Institute for Dispute Resolution has a dual purpose to share some of the communication skills that mediators observe in really good negotiators and to explore how language can contribute to professionalism in the context of negotiations. I will help to guide the discussion as moderator. The content of this Florida Bar approved continuing legal education (CLE) is designed for trial lawyers who represent clients in mediation and for professional mediators. See more information and registration link here-- http://conta.cc/2cZWJP3

Beware Mediation Certificates of Authority

This month, the Second District Court of Appeal reversed a circuit court judge who agreed with exceptions taken to a magistrate's report and recommendation and entered a final order following a failure to show cause, thereby dismissing a residential foreclosure case with prejudice due to a bank's alleged failure to attend mediation. The court also entered a final judgment against the bank for attorney’s fees and costs pursuant to Section 57.105, Florida Statutes. This sanction was given because the bank had technically failed to attend court-ordered mediation because in not timely filing a certification of settlement authority required by Florida Civil Procedure Rule 1.720. Rule 1.720 authorizes a court to award sanctions that include attorney’s fees and costs and mediator expenses resulting from a party’s failure to appear. Violations of Rule 1.720 have typically been addressed only with monetary sanctions. As a mediator, we are not often copied on Certificates of Authority and are not involved in policing this filing, which is the court's domain. A party representative having full authority to settle under the rule means the final decision-maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing about the rule requires any party or party representative who appears at a mediation conference in compliance with the rule to enter into a settlement agreement. The rule also requires that 10 days prior to the mediation, participants must file a certification of who will be attending the mediation on behalf of the party and who has the authority to settle the case. In the H&R Block Bank v. Perry matter, the complaint was filed on behalf of H&R Block by Nationstar Mortgage, LLC, a mortgage servicer, acting as H&R Block’s attorney-in-fact. At the outset of the case, H&R Block had filed a required form which stated that a representative of Nationstar would attend any mediation on behalf of H&R Block with authority to settle the case. The trial court subsequently entered an order referring the case to mediation. Three days before mediation, H&R Block filed a certification of settlement authority under rule 1.720. H&R Block’s certification was filed seven days later than Rule 1.720 requires. Because the trial court failed to make findings supported by the record that the conduct involved was willful, persistent, or otherwise aggravated and that no lesser sanction would be just under the circumstances, the decision was reversed. See opinion here-- http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2009,%202016/2D15-1351.pdf