Florida Loses Water Wars

After rejecting a now deceased Special Master's ruling in favor of Florida and remanding to a new Special Master to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia, the U.S. Supreme Court this week received a recommendation not to grant Florida’s request for a decree equitably apportioning the waters of the Apalachicola-Chattahoochee-Flint River Basin. The Special Master found the evidence did not show harm to Florida caused by Georgia and that Georgia’s water use is reasonable. Additionally, the evidence did not show that the benefits of apportionment would substantially outweigh the potential harms. Florida asked for oral argument that took place last month, where it asserted the first Special Master found that Georgia’s upstream water use was unreasonable and that the Supreme Court already rejected an additional finding that nothing could be done because the U.S. Army Corps of Engineers (which manages the reservoirs in the river system) is not a party to the case. Florida sought a cap on consumption that would alleviate past damage allegedly caused by Georgia. Georgia maintained any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry. Florida wanted to limit Georgia’s water consumption from the basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Georgia claimed Florida failed to prove harm to aquatic species. This blog has followed the Water Wars for years in several other entries and it now appears this will be the ultimate conclusion in this case of original jurisdiction, absent further action and a presumed adoption of findings by SCOTUS. See more in very detailed report here-- https://bit.ly/2PhTcP5

Orlando Mediator Top 10 Blog!

This month, my blog which will reach a decade old next year, received the honor of being named in good company with top dispute resolution blogs around the world. Orlando Mediator is recognized by Feedspot among such distinguished blogs published by big names like Thompson Reuters, Harvard Program on Negotiation and Kluwer. Feedspot's panelists chose this as number seven in the world for what their founder calls the most comprehensive list of Top 20 Dispute Resolution Blogs on the internet! Feedspot is an RSS reader that allows putting all of your online reading in one location. These feeds can, for example, allow a user to keep track of many different websites in a single news aggregator. I am humbled to know this labor of love for my chosen field is appreciated. The full list is available here-- https://tinyurl.com/y43rav46

California's Arbitration Ban

This month, a California bill prohibiting workplace arbitration was signed into law. Effective January 1, 2020, the new law criminalizes the use of mandatory arbitration agreements by making such a practice a misdemeanor offense. It prevents allegations of discrimination, harassment, and retaliation arising under that state’s Fair Employment and Housing Act from being subject to mandatory arbitration. This action sets up a direct conflict with the Federal Arbitration Act (FAA) and clear federal policy favoring arbitration. Challenges to constitutionality of this and other states' laws of this nature are coming. In recent terms, the U.S. Supreme Court reminded states of the predominance of federal policy regarding arbitration, striking down efforts to undermine the use of arbitration. States will likely argue that an arbitration agreement covering such claims is effectively a contract that is void as a matter of public policy. It will be argued such provisions fall within the FAA’s savings language, which preserves traditional state law defenses to arbitration agreements arising out of contract formation. At least one attorney commentator recognizes the problem with this argument-- that the underlying state policy established by the statute appears to directly conflict with the FAA’s underlying purposes, making the policy itself unconstitutional. As such, an unconstitutional policy should not void a contract whose terms are consistent with federal policy regarding dispute resolution. See more here-- https://tinyurl.com/y5yld9x4 and https://tinyurl.com/y37n4pxn

ADR Section Mentoring Academy

Take your mediation practice to the next level with the Alternative Dispute Resolution (ADR) Section of The Florida Bar's inaugural Mentoring Academy later this month. Some of the state’s most experienced mediators, including some with whom I serve on the ADR Section Executive Council, will conduct this advanced-level Continuing Mediator Education (CME) and Continuing Legal Education (CLE) workshop. You will be coached on mediation strategies and receive instructive feedback on techniques. Also, increase your statewide network with a reception following the Friday evening panel discussion. Saturday’s sessions include lunch. This first-ever Mentoring Academy will be held October 25 – 26 at the University of South Florida’s Center for Advanced Medical Learning and Simulation (CAMLS) in downtown Tampa. The Florida Bar course is approved for 10 CLE/CME, 1 Ethics CLE/CME and 9 Professionalism CLE credits. The $425 tuition includes an annual membership in The Florida Bar ADR Section and those that are already section members can register for only $390. The Florida Bar ADR Section developed the Mentoring Academy in part because mediators have ethical obligations to advance the mediation profession. We are providing an opportunity for succeeding generations of mediators to have the benefit of experienced instruction from more seasoned mediators. Meaningful interaction between the mediator participants and workshop instructors is a key element of the academy. Don't miss out! Learn more here-- FlaBarADR.com/mentoring-academy

CMS SNF Arbitration Rules Revised

A couple of years ago, the Centers for Medicare and Medicaid Services (CMS), an agency under Health and Human Services (HHS), had essentially barred any skilled nursing facility (SNF) that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It was the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in decades. The nursing home industry maintains arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry says, could drive up costs and force some homes to close. This was the case in the early 2000s, when many excess verdicts were recorded in Florida, forcing players out of the state or out of business altogether. Lawyers who work with the elderly say that people are being admitted to nursing homes at one of the most stressful moments of their lives. When CMS essentially barred any agreements requiring residents to resolve any disputes in arbitration, federal courts were quick to issue injunctions in industry suits. Now, CMS has issued proposed regulations with an effective date this week. The final rule (CMS 3342-F) will allow CMS to regulate SNF arbitration agreements, but this does not apply to agreements signed before September 16, 2019. If a dispute is settled through arbitration, a copy of a signed agreement and arbitration award must be kept for five years and available for inspection by CMS. Some providers went back to court to claim the amended arbitration rule is in violation of the Federal Arbitration Act (FAA) and that neither CMS nor HHS has the “statutory authority” under the Medicare and Medicaid acts to regulate alternative dispute resolution. I have conducted long-term care arbitrations, usually serving as the chair of a panel. These are difficult cases and are sometimes better suited to be resolved in private before knowledgeable and fair neutrals, rather than presented to juries. Arbitration of health care cases can be streamlined for counsel, saving the parties costs and often providing a quicker result than the courts. See more in trade publications here-- https://tinyurl.com/y4v5skyc and https://tinyurl.com/y4yaehk3

Hurricane Mediations Sure to Come

With the likely path of Hurricane Dorian to include Florida, homeowners will want to check their insurance information and keep policy numbers handy should claims arise. I have conducted many mediations over the past few hurricane seasons and as is expected, these claims take time to adjust and longer to litigate and eventually mediate. Past storm litigation continues for thousands of residents previously encountering losses. Keep in mind, under state law, a hurricane is defined in Section 627.4025(2)(c), Florida Statutes, as a storm system that has been declared a “hurricane” by the National Hurricane Center of the National Weather Service. According to Section 627.4025, Florida Statutes, the Hurricane Deductible applies only in the event of a named hurricane. The duration of a hurricane in which the Hurricane Deductible would apply includes the time period: 1) Beginning at the time a hurricane watch or warning is issued for any part of Florida by the National Hurricane Center and 2) Ending 72 hours following the termination of the last hurricane watch or hurricane warning issued for any part of Florida by the National Hurricane Center. Florida's Department of Consumer Services usually updates information in the aftermath of a named storm and lists contact information for most insurance carriers. Stay safe and see more here-- https://tinyurl.com/yyhtby9y and https://tinyurl.com/y44t4cmq

Join us 8/28 for free CLE/CME on Design Thinking in Mediation

Join me and my new UWWM colleague, April Walker, for a free CLE Webinar at noon Wednesday, August 28, 2019. We will explore the application of design thinking to the mediation process in Florida. Those who like to go beyond the day-to-day of alternative dispute resolution and apply other rubrics to improve outcomes should attend this interesting program. The formal title is "Design Thinking Applied to Mediation: Taking Advantage of the Informal and Non-Adversarial Nature of the Mediation Process" and it will look at principles that are successfully employed in other disciplines. For over fifty years, creative problem-solving approach designers have used these techniques to create new values that are different and make a positive impact. We intend to offer some ideas in the problem-solving role of mediation and to encourage some innovation in the daily approach of settling lawsuits. This complimentary CLE is approved by the Florida Bar for 1.0 hour of general CLE credit. After registering, you will receive a confirmation email containing information about joining the webinar. https://register.gotowebinar.com/register/7035925939656754947