FLABAR ADR Section Meeting 1/17/18 in Orlando!

Happy New Year from Orlando Mediator! Please join us as our Executive Council of The Florida Bar Alternative Dispute Resolution (ADR) Section convenes in Orlando during the bar's mid-year winter meeting. Founded some eight years ago, around the time I started this blog, the ADR Section was designed to provide a forum for lawyers and attorney-mediators interested in alternative dispute resolution and a place to share common interests, ideas and concepts. It is not for non-lawyer mediators. The ADR Section regularly puts on continuing legal education (CLE) programs, as well as provides advocacy in rule changes, legislation and commentary to the Supreme Court of Florida when dealing with proposed amendments in all forms of alternative dispute resolution. Any member in good standing of The Florida Bar interested in the purpose of our section is eligible for membership upon application and payment of the ADR Section’s annual dues (which are just $35) and can be added to your regular bar dues at the time of renewal. Any member who ceases to be a member of The Florida Bar in good standing shall no longer be a member of the ADR Section under its by-laws. Hope to see you at the Hilton Double Tree Orlando this month as we debate our position regarding important legislation that has been introduced for the next session which I discussed on this blog last month! More information on our meeting and the section can be found here-- http://fladr.org/events/the-florida-bar-winter-meeting-and-adr-executive-council-meeting/

R.J. Reynolds to keep paying millions in FL Settlement

A Florida judge enforced a landmark settlement deal and ordered R.J. Reynolds to continue paying the state millions of dollars in tobacco settlement money, despite selling off major brands. The ruling comes nearly a year after Florida's Attorney General sued the tobacco company and Imperial Tobacco Group, a London-based company that took over North Carolina-based Reynolds American Inc. Reportedly, the A.G. said payments will ensure Florida's historic tobacco settlement is honored and the state receives the money it is owed. Florida was already owed $45 million when the suit was filed and could lose $30 million a year going forward. The judge found that until R.J. Reynolds has its obligation to pay Florida transferred to Imperial Tobacco Group, it must continue to pay. R.J. Reynolds and other large tobacco companies were part of a 1997 multibillion-dollar settlement with Florida to compensate the state for treating sick smokers. However, the company since sold cigarette brands Kool, Winston, Salem and Maverick to Britain's Imperial Tobacco Group, with neither company continued to make payments to the state. Pushed by then-Governor Lawton Chiles, Florida was one of the first states in the U.S. to seek damages from tobacco companies. The state's initial lawsuit sought reimbursement for Medicaid costs in the past and the future and contended that tobacco companies had engaged in unlawful actions and misleading advertising. Last year, the state was projected to receive more than $350 million from the settlement. See full story here-- http://bit.ly/2E79gvs

FL Senate Mediation Authority Bill

A new bill for the 2018 Florida legislative session has been introduced requiring that insurance carrier representatives who attend circuit court mediations have specified settlement authority and the ability to immediately consult by specified means with persons having certain additional settlement authority and to be available by telephone. Senate Bill SB 1034 would create Section 44.407, Florida Statutes, which would allow sanctions for insurance carriers that fail to comply with good faith requirements of mediation (a term never truly defined). Additionally, Section 44.408 would compel certain third parties to attend mediation upon the request of the mediator or be available to teleconference, though not required to pay any mediation fees by participating. Also, Section 44.409 would limit information that may be included in the mediator’s report to the court. The new law would allow only the following reporting: (a) A complete agreement was reached (b) A partial agreement was reached (c) No agreement was reached. If a partial agreement was reached which eliminates claims or parties from the litigation, a list of such claims and parties may be provided, but no additional information may be disclosed. If passed, and signed by the governor, this act would take effect July 1, 2018. The Executive Council of The Florida Bar Alternative Dispute Resolution Section on which I serve is looking at this legislative development and will take up the issue at its January, 2018 meeting in Orlando. See proposed language filed here-- http://bit.ly/2zgh9hN and ADR Section info at www.FlaAdr.org

Favoritism Frowned Upon

A Florida County Judge saw fit to refer hundreds of mediations to her former campaign adviser, resulting in discipline. Judge Claudia Robinson admitted steering some 80 percent of her pending cases to the same mediator, Michael Ahearn, an unpaid adviser on her 2014 mostly self-funded election campaign. Judge Robinson acknowledged she contravened judicial canons by “creating the appearance of impropriety and favoritism” in her dealings with her former political consultant. The Judicial Qualifications Commission (JQC) did not find that Robinson entered into a formal agreement to compensate Mediator Ahearn for his campaign services, which would have been illegal. In each case in which he was appointed, the parties involved had the right to reject his appointment in favor of another mediator. Ahearn actually worked on 174 of 296 cases the judge ordered into mediation, but was assigned to 245 as default mediator if the litigants did not choose an alternative within 10 days. The mediator charged $250-$300 per hour with a one-hour minimum. Ahearn testified he and the judge never agreed she would direct cases his way in exchange for his pro-bono campaign consulting work. Judge Robinson reportedly broadened the pool of mediators after a journalist broke the story. The news story by an investigative reporter also prompted an ethics complaint against the mediator, who denied any wrongdoing. The Florida Bar investigated those allegations and dismissed a bar complaint finding no inappropriate relationship between mediator and judge. The judge now faces a 30-day suspension without pay, based on the JQC’s recommended stipulation. The Florida Supreme Court now has the discretion to accept or reject the terms of the stipulation. See more here-- http://bit.ly/2ArGGWh and http://bit.ly/2AXJ9ch

Sexual Harassment Mediation

What a season it has been for sex in the workplace. Sexual harassment claims involve a complainant (an employee), the accused (usually an employee), and the employer (or company). Complainants normally seek to address being violated or abused in some way and need to feel normal again. Complainants want unwelcome behavior to stop, but often don't want to put their career in jeopardy by filing the complaint, and would rather continue doing his or her job as though nothing has happened. They also may want the employer to make up for past loss of a promotion due to the alleged harassment or even back pay. Mediation can help avoid further emotional trauma, including a public trial. Likewise, the accused may welcome maintaining confidentiality of the charges to the greatest extent possible, and to keep his or her job. The accused may even find exoneration possible. Finally, all employers want to avoid liability, while maintaining productivity and upholding company policies. Because mediation remains confidential, negative career repercussions are less likely to occur. With a resolution, a victim may resume his or her job with the company. The process also allows the victim to air frustrations and self-determine remedies that allow him or her to be made whole again. These remedies are often not available in traditional litigation and can include apologies and promises of help in attaining other employment. Similarly, employers can agree to reinstate a complainant or award an previously withheld promotion. Harassers can be transferred, fired, or reeducated. Mediation can meet the accused's objectives, as well, with an opportunity to clarify his or her side of the story. The confidentiality of the proceedings allows settling the situation without public disparagement. If the charge resulted from a misunderstanding, the miscommunication can be worked out without becoming more polarized. Mediation also allows the accused to make amends for the unintentional harm inflicted. Employers find disposing of these cases through mediation quicker and less expensive than litigation and the process provides less disruption of the work force. Finally, mediation promises less stress than litigation for all parties involved. See more here-- E. Whittenbury Vol. 43, Number 4, Business & Economic Review, Moore School of Business, University of South Carolina http://bit.ly/2AhpzGM

International Arbitration in Florida

The Supreme Court of Florida last week approved a Florida Bar board certification specialist (BCS) program for international litigators and arbitrators due to Florida increasingly becoming an international arbitration hub. In a decade-long effort by the International Law Section to create a board certification program, international litigators and arbitrators now have a novel certification helping to position particularly Miami as an attractive place for foreign companies to resolve their disputes. To meet the requirements for board certification, practitioners will have to have a significant amount of experience and will have to submit references of arbitrators, judges and opposing counsel. Practitioners also will need to show that they have completed a certain number of hours of continuing legal education in the particular area. Finally, practitioners will have to take a lengthy exam. Another rules decision now allows foreign attorneys to work as authorized in-house counsel for companies in the state. Previously, only American attorneys could be in-house counsel, but companies often have foreign lawyers in-house if they are doing lots of foreign business. Reportedly, those attorneys would have run the risk of being subject to Florida Bar prosecutions for practicing law without a license. Communications between these in-house foreign attorneys and their companies in the event of litigation are also protected under the change when opposing counsel seek such communications, enabling businesses to hire the people they desire to advise them. As a sidebar, I recently attended our annual retreat of the Executive Council of our Florida Bar ADR Section where we discussed board certification for arbitrators and mediators by the bar for civil cases in the state. It was decided the section would discontinue pursuing such a specialization certification from the state bar in these forms of ADR, as it does not actually constitute the practice of law. Regardless, there are already a non-BCS certification for mediators and a qualification for domestic arbitrators by The Supreme Court of Florida. That court will soon decide if court connected cases require certified mediators be assigned. Stay tuned! See full news story here-- http://bit.ly/2zPfq1H and Supreme Court of Florida case In re: Amendments to the Rules Regulating the Florida Bar (Biennial Petition) SC16-1961 here-- http://bit.ly/2j0klVr

MEAC's Latest on Reporting Settlements

Florida's Mediator Ethics Advisory Council (MEAC) recently considered an inquiry on reporting partial settlements. A mediator writes in that the inability to differentiate between a final and partial agreement on the face of the report as permitted by the mediation procedural rules has created an ethical dilemma in the need to report to the court the actual outcome of the mediation and the status of the case. The practitioner complains it is not only misleading to the court to report only "agreement" or "no agreement," it is also time consuming for the judges, judicial assistants or case managers to read every agreement to determine if it is final or partial agreement as opposed to being able to look at the report. MEAC found that in civil and family law cases only, with the consent of the parties, the mediator's report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. To report anything additional without agreement of the parties, or add descriptors or modifiers to "agreement," "no agreement," or "partial agreement," would be providing information to the court, an action which is prohibited by the Mediation Confidentiality and Privilege Act, Sections 44.401-405, Florida Statutes. They did say, however, the rules do not restrict the parties from including in the written agreement their consent to the inclusion of additional language, descriptors, or modifiers in the mediator's report. See full advisory opinion here-- http://bit.ly/2j4YkZr