Orlando Mediator's 400th Post! Standard of Review for Settlements De Novo

A District Court of Appeal (DCA) in Florida has concluded the standard of review of a trial court’s decision under section 44.405(4)(a)5. of the Mediation Confidentiality and Privilege Act, regarding whether a confidentiality or privilege attaches to a mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation,” is de novo. In the recent decision of Brickell Financial Services - Motor Club, Inc. v. Road Transportation, LLC, on remand the trial court was instructed by the Fourth DCA to weigh the settlement accounting, along with the parties’ mediation communications, and any other admissible evidence, in determining whether a meeting of the minds occurred regarding the dollar amount to which the term “Settlement Sum” referred and, if so, what that amount was. They cited a prior decision in DR Lakes Inc. v. Brandsmart U.S.A. of West Palm Beach, Inc., 819 So. 2d 971 (Fla. 4th DCA 2002), which pre-dated the legislature’s enactment of section 44.405 in 2004, but interpreted section 44.405’s predecessor, section 44.102(3), Florida Statutes (2001). That was after initially stating “all mediation communications shall be confidential,” the legislature created an exception in section 44.405(4)(a)5. for any mediation communication “[o]ffered for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.” The Fourth DCA reminded parties and the trial court that a party seeking to enforce a settlement agreement bears the burden of showing the opposing party assented to the terms of the agreement. See more here-- https://bit.ly/3eyYP5I

ADR Rules & Policy Petition: Comments Due 7/31!

The ADR Rules & Policy Committee of The Supreme Court of Florida has petitioned the court for the passage of amendments that would require all mediators who mediate actions filed and pending in any Florida court be subject to Parts II, Standards of Professional Conduct (ethical standards), and III, Discipline (disciplinary process), of the Florida Rules for Certified and Court-Appointed Mediators, regardless of whether or not a court order of referral has been issued. The Committee also recommends the addition of corresponding language to Rules 10.200 and 10.700, Florida Rules for Certified and Court-Appointed Mediators. The amendments are designed to remedy two shortcomings in the existing rules. First, mediators who are not certified are currently not subject to the rules if they mediate a filed court action before an order of referral is issued. Second, although it is the Committee’s opinion that uncertified mediators selected by the parties, but not appointed by a specific court order after review by the presiding judge as required by the procedural rules, are subject to the ethical standards and disciplinary process, the Committee believes there is a dispute regarding whether a general order of referral suffices to constitute a court appointment. This petition is designed to remedy those issues. The amendments submitted in this petition originated in 2017 as a Committee proposal that would have required all mediators of state court trial and appellate cases be Florida Supreme Court certified, with appointment restricted to their subject matter areas of mediator certification (mandatory certification was also supported by a majority of the Executive Council of The Alternative Dispute Resolution Section of The Florida Bar). Comments must be filed by July 31, 2020, after an extension was granted. See more here-- https://bit.ly/36ZMzIz

New Admin Order: Orange-Osceola Courts Opening

Please take note this morning that everyone entering the courthouses in Orlando and Kissimmee will be required to wear a mask and undergo a health screening with a temperature check before entering the building. Masks shall be worn in all public areas of the court facility, including courtrooms or hearing rooms, unless the Judge or Judicial officer authorizes its removal. Per the Administrative Order by Chief Judge Myers, all persons will be checked for their body temperature using an infrared or other non-contact temperature device before entrance to a court facility. Any person who registers a body temperature of 100.4 degrees or greater shall not be permitted to enter the court facility. In the event an individual refuses to undergo a health screening or temperature check, or refuses to wear a mask for entrance to the court facility, the security personnel or other person performing the health/temperature checks shall attempt to obtain and record the same information described above. Once the information is obtained, the information shall be provided to the appropriate Judge, Judicial Officer, Clerk, or other court facility occupant so that alternate arrangements can be made for the person, such as a remote appearance, rescheduling a hearing, or other measures, as necessary. In regard to civil proceedings, according to last week's judicial town hall meeting, remote hearings are still a priority and dispute resolution via electronic means is still encouraged during COVID-19. UPDATE: Court returned to Phase 1 restrictions due to spiking Coronavirus numbers June 23, 2020. See full order here- https://bit.ly/2yPCZLA

Florida Courts Remain Closed

This week, the Chief Justice of the Supreme Court of Florida acted on the recommendations of a statewide Court Continuity Workgroup, issuing an amended administrative emergency order increasing the list of proceedings state courts will accomplish by remote technology during the Coronavirus pandemic. As such, jury trials in Florida are suspended until July 2nd and other deadlines are pushed back until following the July 4th holiday weekend. The court recognized that in-person jury trials pose a special hazard because they can expose jurors and other courtroom participants to a risk of infection. Future extensions will be considered, if needed. Of interest to followers of this blog, the order especially focuses on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." Case types listed in the order will be held by telephone or other electronic means. Of course, online ADR or ODR has been in full effect since this all started using various existing commercial platforms like WebEx, Zoom and GotoMeeting. Additionally, the Continuity Workgroup that I blogged about last month was asked to submit recommendations as they are developed to guide a phased return to full court operations. The expanded list of essential proceedings adds to earlier efforts to mitigate the impact of Coronavirus while letting courts operate in a way consistent with public safety. Florida’s courts have followed emergency guidelines since a March 13th order, when jury trials were first suspended and actions restricting in-person proceedings were implemented to enforce social distancing. Subsequent orders extended these limits through the end of May, subject to future orders made necessary by the pandemic. Chaired by Orlando Circuit Judge Lisa Munyon, the Court Continuity Workgroup’s mission includes examining the current status of all court proceedings statewide and proposing methods for resolving cases with remote technology and other new procedures that may remain when all this is over. According to the court, the move toward more virtual proceedings is a major historical shift in state court operations, which have relied heavily on in-person hearings in the 175 years Florida has been a state. See more in the latest Administrative Order here-- https://tinyurl.com/yb7jypo9

Small Claims ODR Pilot Begins

The Ninth Judicial Circuit Court of Florida begins its free Small Claims Online Dispute Resolution (ODR) program this month in Orange County. If both parties provide an email address on file with the court in a case that qualifies for ODR, the court will notify them of the availability to use ODR to resolve the case. The email will also provide instructions on how to register with the Online Dispute Resolution Center located at the custom domain found here-- https://flcourts09sc.modria.com. There, the plaintiff will answer some questions about the case. The court will then send the defendant an email. The defendant should review the information and provide a response. If a solution can't be found with the other person, either can ask for help from a real mediator (Surprise, AI not quite the end-all be-all yet!). A mediator is a certified specialist trained to help litigants in County Court reach a resolution. There is no longer a need to appear for a Pretrial Conference Mediation date if the parties reach a signed agreement using the Online Resolution Center. Timeliness matters in this process which must be completed at least 10 calendar days before the Pretrial Conference Mediation date. If parties do not complete the process by the deadline, they will need to appear for the assigned Pretrial Conference Mediation date. This process comes about via the court being an existing licensee of software like Odyssey from Tyler Technologies. Specifically, they are allowing the use and integration of Modria, which has a demonstrated record of resolving small dollar consumer cases in online commerce. I spoke to representatives of the public company last year and they plan to expand in other jurisdictions. See more here-- ow.ly/yJ5w50zu80h and https://tinyurl.com/yafdrm63

COVID-19 Court Continuity

The Supreme Court of Florida just released an Administrative Order creating a Florida Court Continuity Workgroup, consisting of a seventeen member task force meant to find ways for the courts to operate as fully as possible during each stage of the Coronavirus pandemic. Chief Justice Charles Canady selected our very own Ninth Circuit Judge Lisa Munyon to chair this workgroup. I worked alongside her as a General Civil Magistrate, hearing matters in Orange County's Circuit-Civil Division Business Court cases. She is a very effective judge and also leads the statewide Florida Courts Technology Commission that explores traditional and innovative methods of utilizing compatible technology infrastructures to improve case management and efficiencies in the judicial branch. As chair of the new workgroup, she will guide esteemed law professionals from across the state in their mission to examine the current status of court proceedings, propose methods and rule changes, find solutions for legal issues, and in recommending the priority of proceedings to resume. Specific to Alternative Dispute Resolution (ADR), the members will identify and propose solutions for implementation challenges and cost issues associated with the use of remote technology. The workgroup will also consult with other stakeholders and public health experts to determine the best way to implement a plan for a staged return to full court operations. See full order AOSC20-208 here-- https://bit.ly/2Vs0jaM

New Florida Supreme Court ADR Order

The Supreme Court of Florida in monitoring and taking measures to address the effects on court operations of the Coronavirus Disease 2019 (COVID-19) pandemic has issued a new order affecting mediators and arbitrators. As the Supreme Court of Florida is the authority to establish standards and procedures for qualifications, certification, conduct, and training for mediators and arbitrators who are appointed pursuant to Florida Statutes, the court has issued an order during this crisis including: -Granting deadline extensions and abating late fee assessments for mediator certification and mediator renewal. -Allowing certified mediation training programs, approved arbitration and approved parenting coordination training programs to be conducted online. -Allowing certified mediators to complete all of their CME requirements in any format including non-live programs. -Granting deadline extensions for approved mediation trainers and certified mediation training program provider renewal applications. -Providing for remote training means instead of physical attendance through the end of the year for mediators and arbitrators. In addition, the Dispute Resolution Center will accept mediator certification applications and mediator renewal materials electronically. Instructions for electronic submission will be sent to individual mediators at the time of renewal notification. Materials can be faxed to 850-922-9290 or emailed to DRCmail@flcourts.org. See full order here-- https://bit.ly/2Xzi09Z