Judge Vacates Emergency Order for Mediation Notes

This month, in an extremely rare move, a federal judge in Washington, D.C. first issued and later vacated an emergency order to preserve the notes of a mediation session in which an attorney allegedly threatened a female partner suing the firm for gender discrimination and pay inequity. Plaintiff, Jane Doe, alleges that another of her firm's attorneys illegally threatened retaliation against her during mediation, saying she was going to be terminated. Plaintiff desired the mediator’s notes in order to prove the exchange happened. The mediator was initially ordered to preserve notes and all other documents related to the session, with no indication whether material would ultimately be found relevant or admissible in the case. Such files are typically destroyed after mediation in order to preserve the confidentiality of the mediation process which allows the ability of parties to be open in session. Florida's Mediation Confidentiality and Privilege Act has very limited exceptions. Even in cases where mediation privilege is waived with consent of both parties, any records are produced in chambers in order to protect confidentiality. Allowing mediation notes to be used in lawsuits is quite disturbing and undermines the whole process, according to experts. JAMS, the ADR provider at this mediation, argued Doe should not have requested a preservation order for session notes because it already informed both parties that the notes would not be destroyed since they were subpoenaed. Doe acknowledged that JAMS said it would suspend its policy of destroying the records until issues surrounding the production of the documents in question are resolved, but asked the court to keep the preservation order in place. Plaintiff's motion was premised on an assertion that "a preservation order is necessary to preserve crucial evidence destined for immediate destruction" and that "absent a court order, it is virtually certain that this evidence will be lost." U.S. District Judge Amy Berman Jackson found since that did not appear to be the case, there is no longer any "emergency" warranting relief, and vacated her previous order. See Jane Doe v. Proskauer Rose LLP, case number 1:17-cv-00901 http://www.dcd.uscourts.gov and more reported here-- http://bit.ly/2rUuMAq and http://bit.ly/2rV5RfV

AHLA Arbitration Rule Changes

I have served as an American Health Lawyers Association (AHLA) panel neutral dispute resolver for about a decade. In this role, I have arbitrated cases involving medical issues, medical group practices, employment issues and disputes involving long-term care facilities There are a few rule types AHLA has depending on the subject matter-- Commercial, Employment, and Consumer. These rules are typically incorporated by reference in health care contracts by agreement of the parties and utilized upon a disagreement arising between them. Effective April 30, 2017, AHLA Dispute Resolution Service rules have changed as follows: Employment Rule 2.4 now puts the onus on the employer to pay the filing fee, at least initially, as employers generally have greater resources than employees. Commercial, Employment, and Consumer Rule 5.1 now provides that no party must pay more than one filing fee per claim. In consumer cases and some employment cases, it protects a health care provider or employer who files a counterclaim from having to pay two filing fees for the same claim. Commercial, Employment, and Consumer Rule 5.6 now vests the authority to rule on a motion to consolidate claims in the arbitrator or panel of the first claim to be filed. The rule also provides that if claims are consolidated, they will be heard by the arbitrator or panel of the first claim to be filed. Previous versions of the rules did not have a process for addressing motions to consolidate. Commercial, Employment, and Consumer cases will be assessed a $400 administrative fee if they remain inactive for more than one year because a significant number of cases required case managers be compensated for time and effort to keep the matter open. If the parties do not pay the fee, the Dispute Resolution Service can close the case after sending a single follow-up message. If a claim is arbitrated in accordance with the version of the rules in force on the date it is filed. The new rules do not apply retroactively to claims filed prior to April 30, 2017. See more here-- https://www.healthlawyers.org/dr/Pages/default.aspx

What goes on in mediation, stays in mediation

Lately, there are reports in other states of settlements being unsealed. Typically, parties in a lawsuit agree among themselves, without assistance of courts, to craft a settlement agreement with a confidentiality clause and, if necessary, enforce such by separate contract action. Counsel may not completely control confidentiality if public officials or public entities are involved or if it may impact public health and safety. In the recent case of a Kansas boy who died in a water slide accident (full disclosure: I used to represent Wet 'n Wild water park in Orlando), the $20 million settlement with the family was confidential until the local paper got involved. The Kansas City Star intervened, arguing that the amounts paid by each defendant should be released to ensure those responsible for the minor’s death were held publicly accountable. The settlement is believed to be the largest for a minor ever in that region. The boy's father is apparently a Kansas legislator whose efforts increased regulation of amusement parks as a result. A companion case of unrelated adult sisters also settled. The newspaper argued the parties responsible should be held accountable such that a financial record of the settlement is needed. Reportedly, the ride will also be taken down as part of the terms. In Florida, our Mediation Confidentiality and Privilege Act governs the disclosure of such information. Confidentiality or privilege against disclosure of mediation communications must be waived by all parties, with limited exceptions and civil remedies are available for violations. Only information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation. Of course, petitions for approval of settlements are required for minors and contain details of the facts of a case, the issues of liability, the monetary amount of damages, and settlement amount sought, as well as attorney’s fees and costs. A judge then evaluates the settlement terms to assess whether they are in the best interests of the minor. It is important to note that the parent or guardian is obligated under the law to act in the best interests of the child. However, these deals often are confidential and statutorily exempt from the provisions of public records laws. See more here: http://bit.ly/2q2uzrk and http://bit.ly/2qvFqgb and http://bit.ly/2qYqg0j and http://bit.ly/2qYqg0j

Meet the Mediator

Our mediation and arbitration firm, Upchurch Watson White & Max Mediation group, based in Central Florida with offices throughout the state, has been profiling our neutral panel members and this month is my turn: "Lawrence has a distinguished career in Alternative Dispute Resolution. He has been a professional neutral for sixteen years. In that capacity he has served as an arbitrator, mediator, and as a general magistrate. Through his bar association work he chaired the effort to modernize Florida Civil Procedure Rules to include E-Discovery. He has also been a member of the faculty at the Advanced Judicial College, Bench Bar conference, and The Masters Conference for Legal Professionals. You may have seen his articles in the Orange County Bar Association Briefs. He is also the author of the officially listed ABA Journal "Blawg" Orlando Mediator (www.abajournal.com/blawg/Orlando_Mediator). Lawrence is AV® rated and has been recognized as a Florida Trend Legal Elite in Arbitration & Mediation, selected as Mediator of the Month™ in Attorney at Law magazine, and identified as a SuperLawyer™. He serves on the Executive Council of The Florida Bar ADR Section (www.fladr.org). He was even named a Litigation Trailblazer and Pioneer™ by the National Law Journal for his innovative work in alternative dispute resolution practice. Needless to say, he has been a very welcome addition to UWWM’s panel of professional neutrals. He brings a scholarly and informed perspective to the firm and to his clients. Given his impressive resume, I thought it might be interesting to discover something about Lawrence that we didn’t know." Aw-shucks! Read my colleague's interview of me here-- http://www.uww-adr.com/Meet-Our-Mediators--Lawrence-Kolin-1-817.html

United Settles With Passenger

Perhaps in unexpectedly quick fashion, Plaintiff Dr. David Dao settled today with United Airlines after he was and randomly selected and removed from an oversold flight to make room for commuting crew members. His lawyers claimed he suffered a concussion, broke his nose and lost teeth during the ordeal. Dao can be seen hitting his head on an armrest and later with blood on his face in cell phone videos posted by other passengers on the flight. The company has since promised it will no longer use officers to forcibly remove paying customers from its flights. The incident occurred on April 9th and has caused a huge backlash against the airline on social media ever since. Early settlements are possible when both sides have problems. Typically, such lawsuits would take some time to reach a conclusion. There were some accounts of the passenger resisting and other things allegedly in his past that may have affected his ability to recover damages. Initially, United referred to Dao as "disruptive and belligerent," and praised employees for following "established protocols." United was obviously keen on mitigating public opinion damage after so much outrage by the traveling public was expressed online. Surely, this will be a future case study for public relations and risk management. In an official statement, United said they reached "an amicable resolution of the unfortunate incident that occurred aboard flight 3411. We look forward to implementing the improvements we have announced, which will put our customers at the center of everything we do." There is no shame in early resolution on either side and the deal is to remain confidential. Still, there will be plenty of speculation on whether the payment was large or small and if it even contained a non-monetary component, such as free future travel. See more here-- http://bit.ly/2qc5sCg and http://lat.ms/2qd4Z5D and http://cnnmon.ie/2qcRFy2

NCAA Student Athlete Settlement Site This Summer

The NCAA and eleven Division I conferences agreed to create a nearly $209 million fund for the benefit of current and former NCAA Division I Basketball and Football Bowl Subdivision student athletes to settle the monetary claims portion of the grant-in-aid class-action lawsuit. U.S. District Judge Claudia Wilken has granted preliminary approval to the proposed settlement of a lawsuit related to the difference in the value of a traditional college athletic scholarship and a new version that covers the full cost of attendance. The deal aims to provide money to about five years' worth of men’s basketball, women’s basketball and football players whose scholarships were limited by NCAA rules to basically tuition, room, board, books and fees. The judge wanted to create a procedure under which athletes could either dispute the amounts they would receive or claim that they are entitled to a share of the settlement if they are not initially identified as being covered by the agreement. As such, a website will be established that will allow athletes to see an estimate of the amount of money to which they would be entitled if the settlement receives final approval. The settlement does not impact another claim challenging the NCAA’s cost-of-attendance-based limits on the compensation athletes can receive while playing college sports. In those cases, the plaintiffs are seeking an injunction that would nullify the current limits. Athletes identified as being entitled to settlement money will be notified by mail, beginning in early August, but they also will be able call, email or write the claims administrator if they believe they should be covered and they do not receive the notification. The agreement maintains cost of attendance as an appropriate dividing line between collegiate and professional sports. The NCAA and conferences maintain they only settled this case because the terms are consistent with Division I financial aid rules, which allow athletics-based aid up to the full cost of obtaining a college education. See more here-- http://usat.ly/2pqvVvC and http://on.ncaa.com/2pFUsfk

Early Neutral Evaluation: Alternative to Evaluative Mediation

In the latest issue of The Florida Bar ADR Section's New & Tips, I explore a type of Alternative Dispute Resolution that is more often used outside Florida. Early Neutral Evaluation or ENE is evolving as an effective form of ADR, given the continued high cost of litigation. This process is a corollary of mediation that puts the neutral in the role enhancing direct communication between the parties about their claims and supporting evidence. ENE can provide an assessment on the merits of the case by a neutral expert in an early reality check for clients and lawyers alike. This helps to identify and clarify the central issues in dispute, assist with discovery (including E-discovery) and can streamline case management. Early Neutral Evaluation can: - Enhance direct communication between the parties about their claims and supporting evidence; - Provide an assessment of the merits of the case by an experienced legal neutral, amounting to a reality check for clients and lawyers; - Identify core issues in dispute while assisting with discovery planning (including electronically stored information); and - Facilitate settlement discussions when requested by the parties before the evaluation. A court-appointed neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel, once the parties request ENE. Following presentations consisting of a confidential exchange of factual information, the evaluator identifies areas of agreement, clarifies the issues and encourages the parties to enter into any stipulation or agreement that is feasible, including settlement. The parties’ formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary and the monetary estimate of continuing toward trial. Read more here-- http://bit.ly/2oEXDa6