Active Case Management Comes to FL 9th Circuit

At today's Judicial Town Hall meeting held by Chief Judge Myers, the Ninth Judicial Circuit of Florida rolled out a new Administrative Order implementing a much more active case management rubric than this jurisdiction has ever known. Counsel will now be required to designate at the outset whether a civil case in county or circuit court is on a complex (per civil rule), streamlined (12 months), or general (18 months) track. Much like federal court, with track designation the court will then issue a Standing Case Management Order imposing deadlines intended to move the case to conclusion under prescribed timelines based on its type. The active case management program will not apply to cases assigned to: (a) Business Court; (b) any civil case designated as complex under Florida Rule of Civil Procedure 1.201; and (c) any civil cases filed on or before April 29, 2021. Existing cases in which the court has entered an order setting the case for pre-trial and/or trial will keep the dates and deadlines already set forth therein which shall govern the progress of those cases. With regard to dispute resolution, within 30 days after completion of the depositions of all parties, counsel shall meet and confer regarding whether an Early Mediation would be productive to resolution of certain issues or the entire case. A so-called Final Mediation shall occur no later than 30 days after completion of all discovery. The new program requires a plaintiff filing a case to include a standard case management plan with the complaint. Until a case management plan is filed by the plaintiff initiating a case, the Clerk will not issue a summons. See more in A.O. 2021-4 here-- https://www.ninthcircuit.org/sites/default/files/AO2021-04.pdf and forms found here-- https://www.ninthcircuit.org/civil-case-management

FL S. Ct. ADR & MEAC Vacancies

For those inclined to stay up on the very latest in our profession, the Florida Dispute Resolution Center (DRC) is currently accepting applications for six member appointments to the Florida Supreme Court's Alternative Dispute Resolution (ADR) Rules and Policy Committee. The committee provides the court with recommendations relating to ADR legislation, and all aspects of ADR policy and rules including, but not limited to, model ADR practices, mediator certification and renewal requirements, continuing education requirements, and mediation training program requirements. The committee consists of 17 volunteer members and may include mediation trainers, Florida Supreme Court certified mediators, arbitrators, trial court administrators, parenting coordinators, attorneys, and judges. Terms are staggered and no member shall serve more than nine years. Additionally, the Mediator Ethics Advisory Committee (MEAC) is a nine member body that issues written advisory ethics opinions for mediators subject to the Florida Rules for Certified and Court-Appointed Mediators. MEAC is accepting applications for three vacancies of four year terms as follows: One certified mediator from the Northern Division encompassing the First, Second, Third, Eighth and Fourteenth judicial circuits; One certified mediator from the Central Division encompassing the Fifth, Seventh, Ninth, Tenth, Eighteenth and Nineteenth judicial circuits; and One certified mediator from the Southwest encompassing the Sixth, Twelfth, Thirteenth, and Twentieth judicial circuits. Applicants shall not also serve on the Mediator Qualifications and Discipline Review Board. These appointments are made by the Chief Justice of the Supreme Court of Florida based upon competence, specialized knowledge, experience in ADR processes, and a commitment to the time necessary to be an active contributor. If interested in serving on either committee, a letter of interest with current résumé should be submitted by April 15, 2021 to DRCmail@flcourts.org

 

Final loss for FL in Water War with GA

Because of the rare use of special masters by the U.S. Supreme Court, this blog has followed the FL-GA Water Wars for years. Now, because this was always a case of original jurisdiction, SCOTUS unanimously rejected Florida's exceptions taken and dismissed the case, essentially finding for GA. This comes even 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 second master's recommendation was not to grant Florida’s request for a decree equitably apportioning the waters of the Apalachicola-Chattahoochee-Flint River Basin. The 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 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) was not a party to the case. Florida sought a cap to 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 economic and environmental harm to Apalachicola's oyster fisheries from drought. Georgia claimed Florida failed to prove harm to aquatic species and the high court yesterday agreed. The opinion finding Florida has not met the exacting standard necessary to warrant the exercise of this Court’s extraordinary authority to control the conduct of a coequal sovereign was authored by Justice Barrett and can be found here- https://www.supremecourt.gov/opinions/20pdf/22o142_m648.pdf

Still Zooming A Year Later!

Despite Coronavirus severely curtailing the practice of law in courthouses across the country, lawyers found success settling cases over the past year using readily available technology. Our firm has since conducted some 3,500 mediations by Zoom, GoToMeeting, Microsoft Teams and other platforms, as well as good old-fashioned telephone and text. Few barriers to attending mediation exist when using off-the-shelf equipment and simple apps available for download. Though we utilized these methods at times before the COVID-19 pandemic, it was usually due to the unavailability of a party that remote attendance at a mediation conference happened. Because trial dockets across the country remain in disarray (Florida is a million cases behind), mediation of pending cases provides the soonest means of self-determining an outcome. Online Dispute Resolution (ODR) or virtual solutions can be accessed from the comfort and safety of home. As with traditional mediation, online mediation has allowed the mediator to adapt the process to address the particular needs of parties. Caucus is still possible, ensuring confidentiality, end-to-end encryption and the environment required for candor in negotiation. Of course, nothing beats being in person for a read of the room, but I believe remote attendance is here to stay. Participants appreciate reduced costs and less time expended overall in convening the process. Some cases that would have taken all day seem to resolve even faster online. Whether or not a settlement is reached, much is still learned by parties and counsel through the exercise and most cases settle thereafter still! That's not to say that our 3,000 year tradition of face-to-face mediation won't return as we are vaccinated, but ODR can still be effectively employed in many types of cases going forward.

DRC Call for CME Presentations

The Florida Dispute Resolution Center (DRC) is calling for proposals for this summer's annual mediator conference. The conference will be held virtually on August 11 - 13, 2021. If your workshop submission is selected, you may be asked to present twice during the conference. You and your second presenter, if applicable, will receive a conference registration waiver. By submitting a workshop proposal, you agree to allow your presentation to be recorded and agree to submit to the DRC prior to the conference any materials you intend to distribute in conjunction with the conference. The recording and materials will become public records. If you believe copyright or trademark interests exist, you must notify DRC upon submission of your proposal. If no copyright or trademark interests exists when you submit your proposal, all such rights are otherwise waived upon submission of the proposal. Presenters should be familiar with virtual conference software (such as Swoogo, Pathable or Zoom) and have experience presenting their session during a virtual conference. See more info here-- https://bit.ly/2ZX0IUk

Fla. S. Ct. Declines to Adopt New Mediator Rules

Last month, the Supreme Court of Florida quietly rejected a multi-year rules proposal effort by its own ADR Rules & Policy Committee attempting to ensure that the mediation process operates in accordance with mediator rules and standards already adopted. The proposed revisions pertained to the practice and procedures of mediation in the court system and added requirements that those who mediate court connected cases as part of the machinery of the judicial process must observe the existing rules of mediators, regardless of certification. The committee found it inconsistent and illogical to have one group of professionals in the court process who are subject to no ethical standards involving the vitally important mediation service they provide the public. Florida certified court mediators are already obligated to follow rules related to mediation in the court system. However, the court chose to leave existing rules in place such that parties are still free to choose whomever they want (clergy, rabbi, spiritual advisor) to mediate their case without the beneficial boundaries of mediator ethics and a system of enforcement. While the committee made clear it does not believe the creation of an exempt group of compensated court professionals was the intent of the court for mediation in Florida, the court left it alone with only a dissent from Justice Polston emphasizing the need for instilling public confidence through principled ethical protections in mediation of pending state court cases. See more in Case Number: SC20-565 here-- http://onlinedocketssc.flcourts.org

New MDFL Local Rules Take Effect 2/1/21

After careful deliberation and based on the Lawyer Advisory Committee's report and the public comments, the Board of Judges recently approved revisions to the Middle District of Florida's Local Rules. The revised Local Rules become effective February 1, 2021. Stated goals for this revision are to: modernize and simplify; accommodate changes in national and local practice; eliminate overlap with federal rules and statutes; eliminate references to specific federal rules and statutes; address re-occurring complaints and issues; and accord with best practices. In regard to mediation, Chapter Four of the new rules specifies that:  To refer an action or claim to mediation, the judge must enter an order that: (a) designates the mediator or directs the parties to select a mediator and to notify the judge of the selection;(b ) establishes a mediation deadline; (c) requires a lawyer to confirm a mediation date agreeable to the mediator and the parties and to notify the judge of the date; (d) requires the attendance of lead counsel, the parties or a party’s surrogate satisfactory to the mediator, and any necessary insurance carrier representative;(e) notifies the parties that unexcused absence or departure from mediation is sanctionable; (f) requires the mediator to report within seven days after mediation the result of the mediation and whether all required persons attended; and (g) directs that the substance of the mediation is confidential and that no party, lawyer, or other participant is bound by, may record, or without the judge’s approval may disclose any event, including any statement confirming or denying a fact — except settlement — that occurs during the mediation. See more here- https://bit.ly/2YctX4u