The Neutral Newsletter of the Florida Dispute Resolution Center

Volume 3, Issue 1 – April 2018

Message from the Director

2017 Summary of Florida Supreme Court ADR Committee and Board Activities

The Dispute Resolution Center provides staff assistance to

five Supreme Court of Florida boards and committees.

The Court’s ADR boards and committees experienced a

busy and productive year in 2017. Meeting monthly, the

Mediator Ethics Advisory Committee (MEAC) will release a

record-breaking total of 20 opinions on questions received in

2017. Eleven opinions have been published and nine more are

at various stages of development for eventual publication in

2018.

The Committee on ADR Rules and Policy filed a petition to

amend rule 10.910, Florida Rules for Certified and Court-

Appointed Mediators, primarily to adjust the geographical Susan C. Marvin, J.D, Chief of

Alternative Dispute Resolution

regions the MEAC members represent to reflect that the Mediator Qualifications and Discipline Review Board (MQDRB) now has four rather than three divisions. The Supreme Court released In Re: Amendments to the Rules for Certified and Court-Appointed Mediators 10.910, SC17-935 (June 22, 2017), adopting the amendments effective immediately with leave for comments to be filed with the court by August 21, 2017. Four comments were filed and the Committee filed a response agreeing to the majority of the comments which were within the scope of the amendment.

The Committee is preparing to file a petition with the Court to recommend a statewide

rules-based grievance procedure for parenting coordinators and requested comment on the

proposed rules from the public on December 19, 2017.

Effective, January 1, 2017, the Committee approved a modification to the “domestic

violence” continuing mediator education (CME) requirement for mediators. The revision did not

alter the number of hours required for the component area but instead expanded the topics

that would count for CME under the umbrella of “domestic violence”. The revision also

changes the CME reference from domestic violence (DV) to interpersonal violence (IPV).

As the newest Court ADR board, the Parenting Coordinator Discipline Review Board

(PCDRB) began 2017 by participating in its first annual meeting. The PCDRB, in three-person

complaint committees, has considered and dismissed two grievances against qualified

parenting coordinators, and is considering three more.

The MQDRB, as noted in the statistics article below, considered 20 grievances against

mediators using the procedures contained in Part III Mediation Certification Applications and

Discipline, Florida Rules for Certified and Court-Appointed Mediators. Members of the four

geographical regions comprising the board met in June for their annual meeting.

Finally, in In Re: Mediation Training Standards and Procedures including Appointments to

the Mediation Training Review Board, AOSC17-25 (May 3, 2017), the Mediation Training Review

Board (MTRB) was reorganized from a 16 member board to a nine member board comprised of

current MQDRB members. The MTRB is charged with hearing complaints against mediation

training programs certified by the Court and the discipline of training program principals.

The Court and the DRC are extremely grateful for the generous time and conscientious

effort the volunteer members of the boards and committees contribute each year.

ADR News and Updates

DRC by the Numbers: 2017 Edition

A total of 92 certified mediation training programs were conducted in 2017. In those

programs, a total of 1,129 persons completed training. Starting with the lowest: 19 people

completed training in two dependency mediation programs; 67 people completed training in

five appellate mediation programs; 283 people completed training in 28 circuit mediation

programs; 297 people completed training in 19 family mediation programs; and 463 people

completed training in 38 county mediation programs. This is a total of 20 more training

programs and approximately 300 more mediators trained than in 2016.

The DRC certified a total of 628 new mediators in 2017 with an average of 52 applications

processed monthly. A total of 2,376 mediators were renewed with an average of 198 renewal

applications processed each month. The month of May saw the most renewals processed and

in December the highest number of new mediators were certified.

DRC Training News

The DRC trained 19 students from the 2nd, 10th, 12th, 18th and 20th circuits at a certified

county mediation training program conducted in Bartow last November.

Pictured with the class are Forrest Young, 10th circuit ADR Director, who hosted the

training, and trainers Jo Dell Coning, Kimberly Kosch, Veronica Jackson, Peter Spanos, Jennifer

Hodges and Pamela McLeod.

The DRC also conducted a certified county mediation training program in Gainesville for

the central portion of Florida on January 30 – February 1, 2018. Pictured with the class are

Peter Spanos, Jo Dell Coning, Mary-Ellen Cross and Todd Tuzzolino who joined lead trainers

Susan Marvin and Kimberly Kosch to conduct the training.

On December 1, 2017, the DRC conducted a CME program for 3rd circuit mediators. There

were morning and afternoon sessions that covered 5 hours of mediator ethics and 1.5 hours of

interpersonal violence education. Pictured are participants from the afternoon session along

with Susan Marvin, Kimberly Kosch and 3rd circuit ADR Director, Jana Sullivan.

The DRC’s commitment to offering free local mediator professionalism training for court

mediators across Florida supports a professional, ethical and skilled judiciary and workforce,

one of the issues highlighted in the Supreme Court’s 2016-2021 Long-Range Strategic Plan.

Mediator Ethics Advisory Committee (MEAC)

The Mediator Ethics Advisory Committee provides ethical guidance to certified or court-

appointed mediators. If you have an ethical question for the Committee, you may address your

question to the Committee c/o Dispute Resolution Center, 500 S. Duval Street, Tallahassee, FL

32399.

Several new opinions have been issued in recent months and have been posted on the

MEAC Opinion Page.

Mediator Qualifications and Discipline Review Board (MQDRB)

The Florida Supreme Court adopted the Florida Rules for Certified and Court-Appointed

Mediators with an effective date of May 28, 1992. To date, 265 grievances have been filed. A

table showing the breakdown of the cases that were filed in 2017 is below:

2017 – Total of 20 Cases (5600 mediators) Division Filed By Case Type

Northern – 5 Party – 15 County Mediator / County Case – 2

Central – 4 Attorney – 1 Family Mediator / Family Case – 6

Southeastern – 6 Other – 4 Circuit Mediator / Circuit Case – 5

Southwestern – 5 Circuit Mediator / Federal Case – 1

Certified Mediator / No Case – 3

Certified Mediator / Non-court Case – 1

Non-certified Mediator / Family Case – 1

Non-certified Mediator / Circuit Case – 1

More information on mediator rules, discipline and sanctions is located on our website.

Featured and Guest Articles

Mediation in Public Policy by Rodney A. Max, Esq.

This article discusses the concept of utilizing mediation in the area of public policy decision-

making. Due to the length of the article, please see Mediation in Public Policy to read the entire

article.

Rodney A. Max is a Certified Circuit Mediator with Upchurch Watson White & Max. Originally

published in Cumberland Law Review, Cumberland School of Law, Samford University, Volume 47 No. 2,

2016-2017.

How I Learned to Stop Worrying and Love Nonbinding Arbitration by Oscar A. Sanchez, Esq.

Lawyers are often asked by their clients to estimate the chances of winning their case. This

seems like a reasonable question. But it is a question lawyers are loath to answer because it is

so difficult to accurately predict how a third-party neutral will view the evidence. It is an

especially thorny question for lawyers to answer objectively because lawyers—rightfully so—

see themselves as zealous advocates for their clients' causes. It is difficult enough for lawyers to

contemplate losing, much less to tell their clients that they might lose.

If lawyers had a crystal ball which could predict the future, they could tell their clients how

their case is likely to turn out. Their clients would then be able to make informed, economically

based decisions on whether to settle, or whether to take a risk and go through the time and

great expense of a trial.

Alas, the crystal ball has yet to be invented. But the Florida Statutes have the next best

thing. It is called court-ordered nonbinding arbitration. Florida Statute Section 44.103 is the

statute applicable in most civil cases. The Florida Rules of Civil Procedure that govern

nonbinding arbitration are Rules 1.700, 1.800. 1.810, and 1.820.

Florida Statute Section 44.103(2), permits a court to refer any contested civil action filed in

a circuit or county court to nonbinding arbitration without the consent of the parties, in much

the same way as cases are referred to mediation. When that happens a third-party neutral, the

arbitrator, reviews the facts and the law and comes to a decision. This nonbinding decision by a

third-party neutral provides the parties with a fairly reliable prediction of how a court of law is

likely to rule on their case if it were to go to trial.

Despite its advantages, some lawyers fear nonbinding arbitration because, by definition,

the arbitrator's decision is not necessarily final. Florida Statute Section 44.103(5) provides that

either party may reject the arbitrator's decision and request a full-blown trial. In such cases, the

nonbinding arbitration can just add an extra layer to the process, which can result in delays and

extra costs to the client.

But there may be a steep price to pay for rejecting an arbitrator's decision. Failing to accept

the arbitrator's decision can expose the objecting party to fees and costs.

Nonbinding arbitration pursuant to Florida Statute Section 44.103(6) works similarly to

offers of judgment and demands for judgment pursuant to Florida Statute Section 768.79. If the

plaintiff rejects the arbitrator's decision and files for a trial de novo, but obtains a judgment

which is at least 25 percent less than the arbitration award, the court may assess fees and costs

against the plaintiff. Similarly, if the defendant asks for a trial and the judgment entered against

the defendant is at least 25 percent more than the arbitration award, the court may award fees

and costs against the defendant.

This fee-shifting aspect of nonbinding arbitration encourages the parties to think long and

hard before rejecting the arbitrator's decision and opting for a full-blown trial. Unless the

arbitrator's decision is clearly and extraordinarily wrong, parties have a strong financial

incentive to accept it and move on with their lives. Even if the arbitrator's decision is not fully

acceptable, it can lead the parties to re-evaluate their case and agree to settle rather than to

take their chances with a trial.

Some lawyers also fear nonbinding arbitration pursuant to Florida Statute Section 44.103

because it does not provide all of the bells and whistles of a full-blown trial. In particular, Rule

1.820(c) encourages a simplified presentation. It says that the hearing shall be conducted

informally, presentation of testimony shall be kept to a minimum, and matters shall be

presented to the arbitrator primarily through the statements and arguments of counsel. Such a

simplified presentation can result in substantial cost savings for the clients.

However, the nature of some cases may require a more formal arbitration proceeding.

Florida Statute Section 44.103(4) gives the arbitrator power to administer oaths or affirmations

and to conduct the proceedings as the rules of court shall provide. Any party may petition the

court in the underlying action, for good cause shown, to authorize the arbitrator to issue

subpoenas for the attendance of witnesses and the production of books, records, documents,

and other evidence at the arbitration and may petition the court for orders compelling such

attendance and production at the arbitration. Subpoenas shall be served and shall be

enforceable in the manner provided by law.

So, can parties get out of arbitrating a case that has been referred to nonbinding

arbitration pursuant to Florida Statute §44.103? Yes—by filing a motion to dispense with

arbitration under Rule 1.700(b). But note that the grounds are limited. Parties can dispense

with nonbinding arbitration when only a question of law is involved.

Also, per Rules 1.710(b) and 1.800, there are certain matters that cannot be submitted to

arbitration. Rule 1.800 states that extraordinary writs, civil or criminal contempt, and certain

other categories cannot be referred to arbitration. A party can also file a motion to defer

arbitration per Rule 1.700(c).

How should the arbitrator be chosen? The Supreme Court of Florida has approved a

training program for court-appointed nonbinding arbitrators. While there is no formal Supreme

Court certification per se for nonbinding arbitrators, as there is for certified mediators, Rule

1.810(a) requires the chief judge of each circuit to maintain a list of qualified persons who have

agreed to serve as arbitrators, i.e., persons who have been trained and are willing to serve as

arbitrators pursuant to the procedural rules. Moreover, under Rule 1.700(d), a party may move

to disqualify an arbitrator for good cause. But there is no requirement either in Florida Statute

§44.103 or in the rules of procedure that the court may only appoint Supreme Court trained

arbitrators.

Judges are well-served by nonbinding arbitration pursuant to Florida Statute Section

44.103 because it can conserve judicial resources by taking cases off their docket. Clients are

also well-served by non-binding arbitration because it provides a preview of the likely outcome

of their case, and it can result in resolving their disputes more quickly and cheaply. Lawyers

should learn to stop worrying and love nonbinding arbitration.

Oscar A. Sanchez is a Certified Circuit and Appellate Mediator with OASMediation. This

article was originally published in the Daily Business Review.

An Aid in Mediation: Basic Caucus Principles by Steven M. Leigh, Ph.D.

The origin of the word caucus is unclear however an early reference dates back to February

1763 when John Adams of Braintree, Massachusetts, second president of the United States,

used the word in his diary. In the United States you find that caucus is mostly associated with

events in the political arena where supporters or members of a political party or movement are

meeting to discuss issues and make decisions. The caucus however has been expanded to

include its use in the field of alternative dispute resolution, specifically mediation.

In mediation, caucus is a private, confidential meeting of mediation participants, often with

the mediator. This meeting is separate and distinct from the joint session. The parties may

meet in caucus without the mediator and consult in private with their attorney.

The concept of caucus in mediation was developed to give the disputing parties an

opportunity to take some time away from the joint session to confer with their attorney, if they

are represented, and the mediator to clarify the issues, reflect on long-term and short-term

goals, review options and proposals, gain new facts, develop new settlement offers, allow for

emotional venting, and confirm decisions. Calling a caucus can be useful for both the

experienced and new mediator.

A party, their attorney, or the mediator may call for a caucus. It is a useful tool for both the

experienced and new mediator in the mediation process as outlined below. However, given the

private nature of such a meeting it may result in distrust of the mediator, the other party, and

the process by anyone involved in the mediation. Some mediators and some mediation sessions

do not call for a caucus at any time during a session as a caucus may not be warranted for the

issues brought to the mediation table. The mediator should always have a clear idea of why he

or she is calling for a caucus and, if appropriate, explain their rationale to the parties prior to

going into caucus.

The following are some specifics considerations the mediator must attend to regarding the

use of caucus:

Educate and inform the parties about the technique, including a reiteration of the confidentiality of mediation and the confidentiality of caucus

Overcome resistance of the parties to separate meetings

Make the transition to caucus easy for the parties

Decide which party to caucus with first

Determine the duration of the caucus and allot equal time for all parties

Determine the reason for calling a caucus

Make the transition back to the joint session easy for the parties

In addition, the mediator may want to review the following elements of caucus:

I. PURPOSE and USE a. provide privacy and time to explore options when doing so in front of opposing

party may be perceived as causing party to rush to a premature commitment and may reveal information that party wants to remain confidential

b. mediator needs to clarify or explore statements made by either party c. mediator needs to point out the possible outcomes of the case and discuss the

merits of a claim or defense

II. LOCATION a. must be a private area b. near mediation room but does allow for both visual and auditory privacy c. parties must be physically separated

III. CONFIDENTIALITY a. confidentiality should be explained by mediator to each party again at beginning of a

caucus b. all conversations between mediator and parties are confidential unless mediator

obtains a party’s permission to share what was discussed in caucus, or any portion, with opposing party

c. same exceptions to mediation confidentiality provided in section 44.405(4)(a), Florida Statutes, apply in caucus

d. upon request of a party, mediator may claim an idea brought out in caucus as their own in the effort to assist the parties toward settlement, however this must be done carefully

IV. ETHICS a. mediators must not manipulate confidential information gained in caucus solely to

reach an agreement

V. TIMING a. caucus may be held early, middle, or near the end of a mediation session b. early caucus usually addresses procedures (e.g. interruptions), identifying issues,

and venting of emotions c. middle caucus usually tends to identifying desires and needs, avoiding premature

commitment to a position, generating options, and testing of flexibility to negotiate d. end caucuses are used to break deadlocks, assess proposals, clarify agreement or

settlement conditions, and allow disputants to calm themselves

VI. EMOTIONAL VENTING a. usually done in caucus once the parties begin negative venting in joint session b. best done in caucus when emotions have the potential to destroy the negotiation

process, when they are manipulative, and when safety of the parties may be an issue

c. allows for a physiological release of energy as a result of pent up emotions d. may aid the parties to focus on the issues, problem-solving, relationship building,

and the terms for an agreement once they return to joint session

VII. NONVERBAL COMMUNICATION a. mediators must remain aware of any nonverbal messages conveyed by both the

parties and the mediator within caucus b. by calling a caucus a mediator can eliminate or reduce use of nonverbal messages

during joint session by either party c. mediators can project calmness, rationality, focus, professionalism, and seriousness

through nonverbal messages conveyed to parties in caucus d. lack of understanding and knowledge of culturally based nonverbal communications

can lead to a breakdown of communication between the mediator and the parties in caucus

As caucus is used routinely in mediation, in the introduction at the beginning of the

mediation session, the mediator may describe it and empower the parties by explaining that

they may request a caucus. Any questions the parties have about caucus may be answered at

this time.

Once a caucus has been called, the mediator should review confidentiality and the

additional confidentiality of caucus again for the parties. The parties should be separated into

private rooms or areas. After the issues have been discussed and an appropriate course of

action has been decided, at the conclusion of the caucus, the mediator should ask if there is any

information that cannot be shared with the other party.

In addition, the mediator must be aware of any safety issues when going into caucus. One

or both parties may not trust what is being said or done during this part of the mediation

process, ensuring each party has equal time with the mediator in caucus is important to allaying

potential trust issues. Participants in caucus should remain focused on the issue(s) at hand and

the caucus should not be for longer than necessary. Finally, some mediators will call a caucus at

the first sign of dispute or the expression of negative emotions between the parties. This may

be unwarranted as the parties are in a dispute and may need to voice their concerns under the

protection of confidentiality, within the mediation room – a safe setting in which each party

may “tell their story.” Also, the mediator may gain valuable information from the manner in

which the parties interact while in distress. Hopefully, while hearing what is said and observing

the interaction between them, the mediator may gain insight into facilitating a discussion and

decisions leading to an agreement that benefits both parties.

Steven W. Leigh, Ph.D., is a Certified Family and Dependency Mediator and the Mediation Services

Coordinator in Broward County.

News From the Field

Save the Date

The DRC’s 26th Annual Conference, Make It Matter: Promoting Mediator Professionalism, will

be held on August 9-11, 2018, at the JW Marriott Grande Lakes in Orlando, Florida.

Mediator Retirements

The DRC would like to acknowledge and send best wishes to the following mediators who have

retired within the last year.

Mary Etta Dillon, Ocala

L. Guerry Dobbins, Jr., Homosassa

Oliver Green, Lakeland

Peter Hurley, Venice

Bob Jett, Valrico

Virginia Martin, Panama City Beach

William O’Meara, New Smyrna Beach

Rodney Salvati, Englewood

Notable Achievements and Milestones Hilary A. Creary, certified family mediator, was honored at the 38th annual Florida Bar

President’s Pro Bono Service Awards in Tallahassee. Ms. Creary’s specialty is family law, and the

bulk of her full-representation pro bono cases have involved divorce, separation, annulment or

domestic violence,” the Bar says. “However, in 2017 she also took on several landlord-tenant

cases. She has conducted pro se litigation workshops for litigants in family law cases and has led

seminars on family law at churches.” Ms. Creary volunteers with Legal Aid Service of Broward

County and Coast to Coast Legal Aid through a joint pro bono project with Broward Lawyers

Care.

Several volunteer mediators were recognized in February during the Fifth Judicial Circuit’s

Second Court & Citizens Summit, held at the Citrus County Courthouse in Inverness. Following

presentations that highlighted the importance of alternative court systems such as Teen Court,

Drug Court and Veterans Court, the judges awarded several citizens and attorneys for their

longstanding volunteerism as mediators or in alternative courts.

Pictured front row left to right: Judge Patricia Thomas; Judge Mark Yerman; Pat Wade –

mediator; Barbara Harmon – mediator; Kristine Cranford – mediator; Walt Eastmond – Teen

Court; Robyn Crawford – Teen Court; Dale Merrill – Teen Court; Judge Peter Brigham.

Back row left to right: Judge Richard Howard; Amy Hannell – Teen Court; Tod Cloud – Teen

Court; Thomas Moore – mediator.

Other mediators recognized, but not pictured included Steve Barnes, Claus Brinnitzer, Cam

Campbell, Robin Dombroski, Ginny Fitzgerald, Joy Inzitari, Lee Plourde and William Spahr.