NFL Concussion Settlement Questioned

This week, a hearing took place to consider the deal covering thousands of former players that settled with the National Football League (NFL) over concussion-related suits last summer. The league is reportedly paying $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. The settlement has been characterized as avoiding litigating literally thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and the owners reportedly wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The lawsuits accused the league of hiding known risks of concussions for decades to return players to games and protect its image. For the lawyers who negotiated the proposed settlement of the NFL's massive concussion litigation, the agreement was groundbreaking. For the lawyers whose clients objected to the settlement, it fails to compensate players suffering from the "industrial disease of football," and it allows the league to escape any determination of whether the league concealed the effects of head injuries from its players. Now a judge must decide whether the agreement is fair, adequate and reasonable, following a lengthy hearing and request for written briefs before a decision. Defending the deal, NFL and the players' attorneys insisted they wanted to help suffering players now, emphasizing difficulty in litigating causation between blows to the head and brain damage known as chronic traumatic encephalopathy (CTE) in these football concussion cases. See full story here-- http://es.pn/1xVGuVJ and settlement info here-- https://www.nflconcussionsettlement.com

ADR Rules and Policy Proposes Amendments, New Rules

In a major development, The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. According to The Florida Bar News, the Court is inviting all interested persons to comment on the proposed amendments, which appear online at-- http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed on or before December 15, 2014, with a certificate of service verifying that a copy has been served on Committee Chair, Hon. William D. Palmer, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida 32114 or palmerw@flcourts.org, and on staff to the Committee, Susan C. Marvin, Dispute Resolution Center, Florida Supreme Court Building, 500 South Duval Street, Tallahassee, Florida 32399 or marvins@flcourts.org, as well as a separate request for oral argument if commenters wish to participate in oral argument, which may be scheduled on this case. The Committee Chair has until January 5, 2015, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute

Florida Appellate Mediation Procedures Amended

Changes I proposed to the Florida Rules of Appellate Procedure (FRAP) were adopted by the Supreme Court of Florida last week to conform with amendments previously passed and adopted in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument took place last summer and my rule amendment will be effective January 1, 2015. The new language in Florida Rule of Appellate Procedure 9.720 is designed to mirror what has been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was even a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. See full opinion resulting from FRAP rules committee regular-cycle report here-- http://www.floridasupremecourt.org/decisions/2014/sc14-227.pdf

Orlando Mediator Lawrence Kolin Joins Upchurch Watson White & Max

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in settling disputes, including serving as a Mediator, Arbitrator, E-Neutral and Special Master. In this role, I'll keep writing on implementing innovative methods of ADR to resolve cases, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on this, my officially ABA listed "Blawg." For more complete information and to schedule, see-- http://www.uww-adr.com/biography/lawrence-h-kolin (800) 863-1462 For the press release regarding my joining this prestigious group of dispute resolvers, see-- http://www.prweb.com/releases/mediator/lawrence_kolin/prweb12283619.htm

Ten Years Later: Florida Mediation Privilege

Success of mediation surely rests with confidentiality, allowing parties to share information, solve issues, build trust, and self-determine whether to resolve a dispute-- all without fear of subsequent disclosure of candid statements shared during the conference. A decade ago, Florida amended Chapter 44, Florida Statutes to create the Mediation Confidentiality and Privilege Act, § 44.401 et seq. Prior to 2004, it was unclear to what extent any privilege applied and when it could be asserted. Under the Act, all mediations, including both court-ordered and other types (like pre-suit and voluntary) were granted confidentiality protections. This made all mediation communications confidential and applies to all mediation participants. The use of mediation has grown significantly in Florida since these protections were codified. The assurance of confidentiality continues to be essential to the integrity and success of mediation. It still encourages candor between the parties and on the part of the mediator. In order for cases to have a chance of settling, the parties must have faith in the fundamental elements of neutrality and confidentiality with limited exceptions to the privilege outlined here-- http://www.flsenate.gov/Laws/Statutes/2014/44.405

E-Discovery Challenges Can Be Overcome Through Mediation

According to a recent article in Law Technology News by William Hamilton, Executive Director of University of Florida's E-Discovery Project, United States Magistrate Judge John Facciola of the District of Columbia-- with whom I've had the honor of serving together with as a panelist at last year's Innovate conference-- presented on coming changes at last week's Fall 2014 Distinguished Lecture. Judge Facciola opined that E-Discovery cooperation is designed to address the problem of asymmetrical attorney competence. Transparency, he said, is consistent with advocacy and competency. Failures often occur when less sophisticated practitioners make incorrect representations to the court and opposing counsel. A lack of transparency can be cover for incomplete preparation and research about the case and the relevant ESI. According to the article, Judge Facciola also said discovery disputes are a cry for help. As such, a new mode of case management that aggressively intercedes early in the case can address electronic discovery challenges. With aggressive case management, failure may be averted according to the judge. Similarly, E-Neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus a confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-Discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. As the wise judge said, “Litigation is about something—and it is not the back up tapes." The judge, who is retiring soon, emphasized that extraordinary costs of ESI litigation are driving small companies and the middle class out of the system, “I did not become a judge to be a hall monitor in a playground where only the rich can play.” The article appears here-- http://bit.ly/1rqJL9b and the full UF presentation is available here-- http://www.law.ufl.edu/academics/institutes/icair

FLABAR ADR Section Spotlights Upcoming Mediation Week

Michelle Jernigan, Editor of The Florida Bar Alternative Dispute Resolution (ADR) Section's News & Tips publication, has put forth a special edition featuring "Stories Mediators Tell" which is a theme of the American Bar Association's Mediation Week. She recounts that Florida's first Citizens Dispute Settlement Program began in 1975. In 1982, the Florida legislature passed a family mediation statute. In 1986, Florida's Supreme Court created the Florida Dispute Resolution Center to research and develop an infrastructure for a statewide ADR program covering all court contested matters. The following year, the Florida legislature passed one of the most comprehensive legislative ADR programs in the entire country. Since 1988, Florida courts have had authority to order parties to mediation. Jernigan writes that ADR procedures have now permanently altered the judicial culture of Florida. Most cases in Florida are voluntarily mediated at least once, and sometimes twice, in lieu of going to trial which has really become the alternative form of dispute resolution. Many parties seek to utilize pre-suit mediation before a lawsuit is even filed. Even litigants with contractual arbitration clauses frequently choose to mediate before submitting the dispute for final disposition to an arbitrator. Mediation Week will be celebrated nationally from October 12-18, 2014. See our ADR Section newsletter for more here: http://bit.ly/1v4cyYt