Mediation Week 2021

October 17-23 is officially Mediation Week in Florida and elsewhere, marking the importance of dispute resolution as an effective substitute to litigation and the fact that mediation has continued virtually during the pandemic, allowing parties to resolve disputes without resorting to litigation in a system of very backed-up court dockets. Alternative Dispute Resolution (ADR) has been used by Florida courts for more than 30 years. I have been mediating lawsuits for over 20 years now and this past year and a half was the most seismic shift in our profession and the legal profession in general. Online Dispute Resolution (ODR) will now continue as an option following the pandemic through confidential sessions conducted remotely with widely available commerical off-the-shelf technology. More than 5,500 mediators are currently certified by the Florida Dispute Resolution Center. These professionals meet specific standards set by the Florida Supreme Court in the areas of county, family, circuit, dependency, and appellate mediation. In most cases, discerning counsel and their client parties select the mediator. However, a mediator may be appointed by the court when litigants are unable to select their own. Mediation week brings annual focus on ADR work and highlights how individuals, administrative agencies, and businesses can use mediation to develop efficient and customized solutions to conflicts. See more here-- https://bit.ly/3AU5XUt

Certified Mediator Procedures Change

A new operating procedures policy was issued today by the Florida Dispute Resolution Center (DRC). Pursuant to rule 10.140, Rules for Certified and Court-Appointed Mediators, Operating Procedures and Authority, the Committee on Alternative Dispute Resolution Rules and Policy, new procedures are effective November 1, 2021, and supersede any conflicting provisions. Numerous revisions to the certification and renewal processes include:

The 50% continuing mediator education (CME) live format requirement has been rescinded. - Mediators will only be required to complete 16 hours of CME regardless of how many certifications are held. - Mediators may begin earning CME hours for next cycle upon submission their renewal for previous cycle. - Inactive status allows a mediator’s certification to remain inactive for up to five years. - Lapsed certifications are eligible to renew their certifications up to a maximum of five years.

See more here-- https://bit.ly/3FTcRgq

ADR Section Supports ODR

The Florida Supreme Court last month extended the public comment deadline on a rules petition designed to promote greater use of remote technology or online dispute resolution (ODR) in court proceedings, including mediation. Specifically, the COVID-19 Workgroup’s proposed rules changes begin with Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology. The Alternative Dispute Resolution (ADR) Section's Executive Council has now filed a comment on behalf of its members in support of the continued use of remote technology. This was done after surveying members about personal experiences with remote proceedings over the past eighteen months of the coronavirus pandemic and their opinions regarding the proposed rules changes. The Florida Bar ADR Section favors enhancing the dispute resolution process through modernization while also increasing efficiency and lowering costs for the participants. It appears the Proposed Rules will assist to meet that goal, and as such the ADR Section supports the Workgroup proposed changes to Rules 1.700, 1.720, 1.730, 1.750, 9.700, 9.720, and 9.740 with the changes suggested through an official comment filed. The use of communication technology and remote participation at mediation and arbitration provides ready access to these proceedings by adding an additional means to attend and often lowers barriers to participation. Scheduling is easier when travel time is eliminated. The cost of attending is less when there are no lodging and parking costs either. Any early concerns as to communication technology and security have been addressed to the satisfaction of most practitioners and participants. The ADR Section also anticipates that these systems will continue to evolve and improve over time. See more here-- https://bit.ly/2V1hGll

Comments on Remote Rule Changes Due 9/30

The Supreme Court of Florida is extending a public comment period for a rules petition submitted by its COVID-19 Workgroup that is designed to promote greater use of tech due to courts, counsel and parties having experienced great efficiency during the pandemic. Changes to Florida Rule of General Practice and Judicial Administration 2.530, Communications Technology, also impact six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Procedure. The amendments focus on ways to permit virtual proceedings under many circumstances, including mediation. The so-called Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 found Court and Bar leaders embraced remote technology to navigate the COVID-19 pandemic. After months of deliberation, the members determined that permanent, broader authorization for the remote conduct of court proceedings after the pandemic was warranted based on the positive outcomes and efficiencies being observed during the pandemic. The Workgroup noted significant cost and time savings for litigants, lawyers and other stakeholders, while recognizing that remote proceedings are not appropriate in all circumstances. The proposed amendments to Rule 2.530 still require a court official to consider any objections to the use of remote technology and to ultimately approve all use of communication technology. Chief Judge Munyon of Orlando who chairs the effort said remote mediations are here to stay, along with remote hearings and depositions. “Whether a particular hearing is so complex that it needs to be in person, or the evidence is such that it needs to be in person, will be treated on a case-by-case basis,” she said as reported by The Florida Bar News. This morning, the Executive Council of ADR Section of The Florida Bar contemplated filing a comment in support of the continued use of remote mediation attendance which has proved quite effective in the past eighteen months. See more here-- https://bit.ly/2V1hGll and https://bit.ly/3yL2syZ

Mediate First

Be careful not to jump the gun into arbitration when a contract requires other alternative dispute resolution processes as conditions precedent. An appellate court in Texas affirmed the vacatur of an arbitration award because mediation was a condition precedent to arbitration under the governing contract and was not satisfied or waived by the parties prior to arbitration. In affirming the vacatur, the court held that the dispute was never properly before the arbitrator and therefore exceeded his powers in issuing the award. Sometimes an arbitrator in a private arbitration is not given a copy of the entire contract upon being selected. This needs to happen early and counsel should ensure they are on the same page procedurally in order to avoid an expensive and wasted outcome. The agreement at issue essentially stated any controversy shall be resolved by mediation, and if such mediation is unable to resolve it, then exclusively by binding arbitration. The court reasoned that the controversy was not properly before the arbitrator unless and until the parties mediated. There was no sympathy to the appellant’s repeated attempts to mediate with appellees prior to arbitration and the court held ignoring such demands was not inaction or a waiver of the right to mediate. See more here-- https://bit.ly/3A3PRI9 and https://bit.ly/3jelAiL

Mediator Testimony?

A recent query to the Florida Mediator Ethics Advisory Council (MEAC) invovled a federal court outside the state contacting the mediator regarding a post mediation status conference. Apparently, the parties gave different accounts of what occurred and the mediator was called for an opinion of the veracity of such irreconcilable statements. The mediator informed the court it would concern knowledge learned through confidential and privileged mediation communications and refused to provide same (the mediation was conducted pursuant to Florida rules and statutes). Thereafter, the mediator was ordered to "answer the question of whether plaintiff made a demand and whether the defendants made any counteroffer during the mediation, but not disclose any specific statements of the parties or the substance of their positions." MEAC advised that a mediator should not voluntarily testify in court regarding information learned in court unless confidentiality is waived by the parties or such communications fall within the exceptions listed in Chapter 44, Florida Statutes. Because this was not truly a Florida case and outside its jurisdiction, MEAC merely reaffirmed previous positions that a mediator should not voluntarily testify in court regarding information learned in mediation unless the parties waive confidentiality, or the communications fall within the exceptions found in Section 44.405, Florida Statutes. If a court issues an order for the mediator to testify, the mediator should either file a protective order or notify the judge that the mediator is statutorily required to maintain confidentiality of mediation communications. Interestingly, a Florida court decision published this month by the Fifth District Court of Appeal opining a motion to reform a mediated settlement agreement adequately alleging a claim for relief based on mutual mistake must be resolved by evidentiary hearing mentions in a footnote that a mediator would be permitted to provide testimony for the limited purpose of establishing or refuting legally recognized grounds for reforming a settlement agreement reached during a mediation pursuant to Section 44.405(4)(a)5, Florida Statutes. See more in MEAC Opinion 2021-005 and 5th DCA Case No. 5D21-316 https://bit.ly/2ZX0IUk

No Prime Day For Amazon and Arbitration

The U.S. Supreme Court decided today not to consider whether drivers for Amazon’s Flex delivery service are interstate transportation workers who can avoid arbitration as part of a proposed class claim. Amazon.com Inc. had urged the high Court to review a federal appellate decision allowing a Flex driver to avoid arbitrating proposed class claims that he and others are misclassified as independent contractors because they’re interstate transportation workers exempt from the Federal Arbitration Act (FAA). The First Circuit Court of Appeals held last summer that those workers making local deliveries to Amazon customers qualify for the FAA exemption, even though they don’t cross state lines, because their work involves transporting goods in the flow of interstate commerce. Flex drivers, therefore, aren’t bound by arbitration agreements that would prevent them from litigating their state law wage claims. In recent years, Amazon used independent contractors to deliver goods through its Flex smartphone app. Flex contractors could sign up for shifts and use their own car while adhering to Amazon’s standards to deliver packages. However, if a contractor takes longer than their shift to complete their deliveries, they are not compensated for extra time, nor reimbursed for gas, vehicle maintenance, or cell phone data costs for the job. Working with Flex, an individual agrees to its terms of service, which requires settling disputes through arbitration governed by the FAA. Interestingly, earlier this month, the company changed its terms allowing people to bring individual or class action lawsuits against it. Amazon made the change in response to more than 75,000 pending arbitration demands on behalf of its Echo device users that would have required it to ante up tens of millions of dollars in filing fees in those cases. It now faces several class actions, including one alleging that it improperly recorded and preserved conversations through its Echo Dot Kids devices. See more here-- https://bit.ly/3vRYhzW and https://bit.ly/3qgc95x and https://bit.ly/2SKw54w