Author: Blane McCarthy

Mediation Settlement Agreements – Nail Down Your Essential Terms

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. As with any contract, a settlement agreement must be based on a meeting of the minds. Most of the caselaw regarding contests to settlement agreements are based on allegations that such a mind meeting never occurred. When both parties to the agreement make this same...

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Cancellation Fees – the Mediator perspective

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.   I have recently experienced a rash of late cancellations and am no longer timid about sending cancellation fee invoices. In response to...

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Mediation Agreements – Haste brings Absurdity

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? In two of my prior articles, I have stressed the importance of finishing the task at Mediation. While the parties usually spend brief moments on it, the final document is the most important. A meeting of the minds is laudable,...

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Dissecting the Standard Mediation Order

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. In August of 2004, Administrative Order No. 2004-6 adopted the Standard Mediation...

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Mediation – Eliminate the Impact of Remorse

“The foolish and the dead alone never change their opinion.” James Russell Lowell. We encounter it almost daily – in ourselves, our families, and our clients. Second-guessing is the impulse of everyone with a pulse. In the business environment, it is termed “seller’s remorse” or “buyer’s remorse”. Did I pay too much for that car? Was I too easy in conceding to my customer’s demands? The situation frequently arises in the context of a Mediation settlement agreement. Our Jacksonville legal community...

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Voluntary Mediations – Confidentiality Now Comes Standard

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...

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Mediator’s Tip – State your Case, As Ordered

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. Who violates Court Orders? Surprisingly, in my experience, almost half of the attorneys...

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Mediation Expenses – Are they Taxable?

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. Thankfully, cost taxation is improved. Recent developments have expanded the list of taxable costs beyond those delineated in the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. As caselaw has confirmed, these Guidelines are nothing more than (you guessed it) guidelines,...

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Mediation Agreements – Don’t Let Your Growling Stomach Distract

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. Hunger is often a factor that can distract the patience of Mediation participants. The longer the conference...

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Mediation/Negotiation Tactic – Hardball

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. In negotiations, you often face the same dilemma when your...

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