Articles

MEDIATION ARTICLES

I strive to keep myself and others informed of developments and changes in the law that affect mediation. Below is the collection of my published articles on these mediation topics, each one attached in readable, printable format.
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Non-appearance In Mediation Cases Can Be A Frequent Problem

Published in the 11/25/13 issue of the Jacksonville Financial News & Daily Record

If you are a litigator, you should know that failing to appear at a mediation conference is fraught with peril. Florida Rule of Civil Procedure 1.720(f) says that the court “shall” impose sanctions, which can be dire. In Motors, Pumps & Accessories, Inc. v. Miami Medley Bus. & Indus., LLC, 116 So. 3d 503 (Fla. 3d DCA 2013), the district court of appeals reviewed a default judgment entered by a trial judge because neither the party nor its lawyer appeared at mediation. While the DCA vacated that judgment and remanded for further record development, it did not overturn that extreme sanction per se.   more  »


Not all Sanctions are Created Equal

Published in the June 25, 2012 Jacksonville Bar Bulletin / Financial News & Daily Record

“Courts have long held inherent powers to sanction bad conduct by parties or their lawyers. Some of this power has been “codified” in statutes and rules, including Florida Rule of Civil Procedure 1.730(c) titled “Completion of Mediation.” Rule 1.730(c) states, “Imposition of Sanctions. In the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorneys fees, or other appropriate remedies including entry of judgment on the agreement.” A very recent appellate opinion offers some helpful analysis of this provision discussing when it is triggered and how sanctions are to be determined.   more  »


Buyer’s Remorse Rarely Negates a Mediated Settlement Agreement

Published in the 06/10 Jacksonville Bar Bulletin

Indeed, many people are less resolute than are others when making decisions. Marketers prey on this human tendency of impulse decision making. It’s the reason why grocery stores line their checkout aisles with candy, gum and all manner of silly periodicals. The frequent consequence of impulse decision making is regret, second-guessing and “buyer’s remorse.”   more  »


Sign Here, Please – the Final Mediation Paperwork

Published in the 06/09 Jacksonville Bar Bulletin

“Sign on the dotted line” is a directive lawyers have used for ages. Generally no agreement is enforceable against a party who has not attested to it by his signature. The law treats such an “agreement” as no agreement at all. Equity has carved out a few discrete exceptions to muddy these waters, but this general legal principle has become axiomatic.   more  »


Cancellation Fees – the Mediator perspective

Published in the 10/06 Jacksonville Bar Bulletin

My original plan for this article was to write about some exciting caselaw about essential terms in a mediation settlement agreement. I’m sorry to disappoint you, but that topic will have to wait. Instead, I want to publicly respond to a letter that I received from a Miami attorney, as I believe the response may be helpful to my local colleagues as well.   more  »


Dissecting the Standard Mediation Order

Published in the 8/15/05 issue of the Daily Record

True or False – mattress tags are not to be removed? I ask the question to prove the point that many of us think we know the content of writings when, in reality, we don’t. When was the last time you actually read every word in the Mediation Orders you receive from the Court? If you are like most of us, it was no more recently than when you last read every word of the Order Setting Trial; a long time ago, if ever.   more  »


Mediation – Eliminate the Impact of Remorse

Published in the March 2005 Jacksonville Bar Bulletin

“The foolish and the dead alone never change their opinion.” James Russell Lowell.  more  »


Mediation – It’s not just for litigation anymore…

Published in the 8/19/02 Daily Record / Jacksonville Bar Association Bulletin

Does this sound familiar? Plaintiff’s counsel demands $25,000. Carrier offers $2,500. Counsel counterdemands $19,500, to which Carrier counteroffers $4,500. A second counterdemand of $16,000 is met with a counteroffer of $6,001. Both sides scream “No More!” A lawsuit is filed, which Carrier sends to its counsel. The attorneys fully litigate the case, consuming much time, resources, and funds in the process. The Court orders mediation, at which a settlement is reached – ten months after the lawsuit was filed and for an amount between the parties’ last negotiation positions.  more  »


Mediation Agreement – the Difference between “both” and “either”

Published in the June 2008 Jacksonville Bar Bulletin

I realize that it references outdated technology, but I am beginning to feel like a broken record. (“Corrupted MP3 file” just doesn’t have the same impact.) At the recent Personal Injury Practice Section seminar and in several Jacksonville Bar Bulletin articles, I have discussed the need to finish the task of mediation. If your goal is to resolve the matter, be sure you spend the necessary time memorializing your resolution before ending the mediation conference. Take the extra fifteen minutes to give your settlement lasting power. Your growling stomach, busy office, and/or cost counter can wait.  more  »


Mediation Agreement to Agree = Disagreement

Published in the June 2007 Jacksonville Bar Bulletin

Often, the parameters of a mediated dispute are finite and known, making the final agreement comprehensive and complete. There are occasions, however, where the dispute or its resolution process is somewhat amorphous, complicating efforts to mediate an agreement. While it is wise to whittle down the scope of the dispute by resolving as many issues as possible, counsel must be ever mindful that a less-than-comprehensive agreement may end up being no agreement at all.  more  »


Mediation Agreements – Don’t Let Your Growling Stomach Distract

Published in the 2/23/04 Daily Record / Jacksonville Bar Association Bulletin

Most Mediations are scheduled around meal times; end before lunch, start after lunch, finish in time to make dinner with the family. Our culture is consumed with food. The Super Bowl intermissions highlighted just how important the business of food is to the American economy. Will a $2.3 million, 30-second commercial really persuade consumers to use one brand of cola over another? Apparently so.  more  »


Mediation Agreements – Haste brings Absurdity

Published in the May 2006 Jacksonville Bar Bulletin

If you could pick one thing that is most important in a Mediation settlement, what would it be: the sense of accomplishment, praise from your client, a warm handshake with opposing counsel, getting everything you demanded, or an enforceable, accurate settlement agreement?  more  »


Mediation Agreements – Mistakes Can be Costly

Published in the 11/25/02 Daily Record / Jacksonville Bar Association Bulletin

The old adage reads, “Beware of the fine print”. Yet, two recently reported cases amplify that font size is not the only villain to a challenged “mistaken” mediation agreement.   more  »


Mediation Appearance – Comply Fully or Foot the Full Bill

Published in the 8/11/03 Daily Record / Jacksonville Bar Association Bulletin

This should be a no-brainer. After all, it’s in every Mediation Order and is the subject of a specific Florida Rule of Civil Procedure. Now, there is unequivocal case law authority.  more  »


Mediation Expenses – Are they Taxable?

Published in the 4/5/04 Daily Record / Jacksonville Bar Association Bulletin

As Spring approaches, the minds of most Americans turn to one of life’s two inevitabilities. April 15th is a deadline that lives in infamy. And while the IRS is kinder and gentler, income taxation is not.  more  »


Mediation Settlement Agreements – Nail Down Your Essential Terms

Published in the February 2007 Jacksonville Bar Bulletin

As promised in my last article, this piece will focus on the essentiality of essential terms to a mediated settlement agreement. This proposition would seem to need no discussion, yet two recent appellate decisions highlight otherwise.  more  »


Mediation/Negotiation Tactic – Hardball

Published in the 12/1/03 Daily Record / Jacksonville Bar Association Bulletin

Baseball has earned the moniker of America’s pastime. It is a game of risk-taking, especially for the batter. When the baseball is pitched, the batter must instantly evaluate whether it will be a strike or a ball. The pitcher’s deception makes that split-second decision much more difficult. A strike sends his teammates to the dugout, while a ball sends him to first base. The batter’s dilemma: is that hardball the real deal or a decoy.  more  »


Mediation/Negotiation Tactic – Stonewalling

Published in the 3/31/03 Daily Record / Jacksonville Bar Association Bulletin

Known as dependably impenetrable, Confederate General Thomas Jonathan Jackson earned the nickname “Stonewall”. While he may not have been the choice to lead an offensive attack, Jackson’s effectiveness at rebuffing Union advances earned him respect among both sides of the great conflict.   more  »


Mediator Misconduct – What Can Be Done To Prevent It?

Published in the 1/27/03 Daily Record / Jacksonville Bar Association Bulletin

What qualities do you look for when selecting a Mediator? If you’re like most litigators, your selection criteria are not absolute but varied depending on the dynamics of the particular case. Some matters are better suited for a mild-manner Mediation approach, while others may require a bit more muscle. A Mediator’s ability to fit these varying roles enhances his or her marketability. But, what happens when the Mediator crosses the line, when the role overtakes the entire process?  more  »


Mediator’s Tip – State your Case, As Ordered

Published in the June 7, 2004 Daily Record / Jacksonville Bar Bulletin

You are probably like me. You hold few things more inviolate than Court Orders. The caselaw regarding sanctions for ignoring them floor you. How could attorneys thumb their noses at the judiciary and thereafter have the gall to appeal the consequences for doing so. It’s the stuff that gives lawyers a bad name, the chicanery that happens only in South Florida, and the disrespect would never be shown by you.  more  »


How Many People Does it Take to Render a Mediated Settlement Agreement Ambiguous?

Published in the July 2007 Jacksonville Bar Bulletin

The few of you who have read my prior articles have undoubtedly detected a recurring theme therein – doing what it takes so that the close of mediation can bring closure to the settlement. Don’t rush through the final step! It amazes me how parties will spend hours hashing out the terms of resolution but get impatient when it comes to documenting those terms in the mediation settlement statement.  more  »


Voluntary Mediations – Confidentiality Now Comes Standard

Published in the September 2004 Jacksonville Bar Bulletin

Last year, I wrote an article alerting you to some key distinctions with voluntary Mediation. The article highlighted that the sanctions, enforcement, and confidentiality provisions of Florida Statute Chapter 44 apply only to court-ordered Mediations. Recent caselaw confirmed that parties could invoke the statute into voluntary Mediations, so that all of the same protections and benefits would apply. Absent such an invocation, voluntary Mediations have the “same number of enforcement ‘teeth’ as does my five-month-old son, Jonah.”  more  »


Voluntary Mediation – Give your agreements teeth…

Published in the 6/16/03 Daily Record / Jacksonville Bar Association Bulletin

As I advocated in my first article last summer, Mediations are not just for litigation anymore. Parties are more frequently turning to this ADR option when presuit negotiations stall. This is not always successful or appropriate, as the lack of formal discovery or other factors may prevent early settlement. Often, however, presuit negotiations fail due to posturing, miscommunication, poor negotiation skills, or a failure to appreciate the other side’s position – all of which can be overcome with the help of a Mediator.  more  »


Mediation Confidentiality – Do Loose Lips Really Sink Ships?

Published in the December 29, 2008 Financial News & Daily Record (Jacksonville Bar Bulletin page)

In my standard introduction statement, I tell mediation participants of my “Top Four Reasons Why Mediation Works” list, the second of which is the confidentiality that applies to the communications that are made. If the fact finder could learn of what went on during the mediation conference, parties would be far less willing to speak the truth and earnestly explore compromise. Without confidentiality, mediation conferences would resemble poker tournaments, where bluffs and lack of candor are expected.  more  »


Jacksonville Injury Lawyer | BLANE McCARTHY

Blane McCarthy, Federal Mediator, Circuit-Civil Mediator, based in Jacksonville, Florida