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As noted by the Court, the facts of the case are pretty straightforward. The insured homeowners suffered a loss when a refrigerator water line broke and caused some flooding inside their house. They sought coverage from their insurer under their property insurance policy. The insurer retained a remediation company to drain the water and dry out the property. A dispute arose between the parties concerning an “Option to Repair” provision in the policy, the scope of remedial work that would be required to repair the damage from the leak, and the selection and hiring of a contractor to effectuate those repairs. Unable to reach an agreement with their insurer, the homeowners retained a law firm to represent them under a contingency fee arrangement. A subsequent jury trial yielded a verdict in favor of the homeowners.
Every now and then some of your failures come back to humble you. Little did I know that after 15 years mediating cases, my 25 years as a civil litigator would result in a conflict case that may go to the Supreme Court of Florida. That may happen in Ochoa v Koppel, 41 Fla. Law Weekly D1196 (Fla. 2nd DCA May 20, 2016), wherein the 4th District Court concluded that the trial court erred in finding the plaintiff timely accepted a proposal for settlement where it was not accepted in the 30-day period; the Court ruled that a Rule 1.090 motion to enlarge time did not toll the acceptance period set forth in Rule 1.442. The Court certified its opinion in conflict with a 5th District Court decision in a case I handled from trial through multiple appeals. In that case, the court ruled that a Rule 1.090 motion to enlarge would toll the 30 day time period to accept or reject and my client’s offer under Rule 1.442.
On Wednesday, April 13, 2016, I chaired and moderated a program at the ABA's International Section's Spring Meeting in New York City, presented by the Mediation Committee of the International Section, titled: "The Role of Mediation in Resolving the U.S. Claims Against Cuba."
The speakers were: attorney Nancy Thevenin, Principal of Thevenin Arbitration & ADR of New York; James Meyer, Partner at Harper Meyer Perez et al of Miami; and Antonio Martinez, of counsel to the Schwartz Malito firm of New York. The program was heavily attended, and there was significant audience participation by way of questions and comments. We had to stop the questions about 7 minutes after the concluding time for the program.
Friday, at our ABA DR Section Spring Conference in New York City, attendees heard from Francesca Gino of the Harvard Business School. Professor Gino spoke on the science of making better decisions, and her talk highlighted the importance of being aware of how we make decisions and to deal with factors that can derail sound decision making. Brain science is important as we are hard-wired in certain ways, and I direct you to my colleague Michelle Jernigan's related webinar on brain science to learn more. Also this morning, Texas A&M University School of Law was awarded the ABA Representation in Mediation Competition Championship trophy. Again, as a judge, I saw firsthand how law schools are preparing students to serve as effective advocates in mediation. All teams that made the finals in New York had worked hard to advance out of their regional competitions.
This morning, attendees of the American Bar Association Section of Dispute Resolution's 18th Annual Spring Conference in NYC heard from Johnston Barkat, assistant secretary-general of the United Nations. Sharing insights from around the world, he spoke of the importance of many of the keys to dispute resolution. Emotional and cognitive intelligence, safe psychological spaces, diversity of thought, and procedural fairness are not only vital to us all as mediators, but also to the transformation of systems. And later, the first of dozens of concurrent learning systems kicked off our three-day day conference.
In a case that just keeps coming back, like a nightmare or a bad penny -- depending on your perspective -- the Fourth District Court recently weighed in on two “settlement” related subjects that happen every day throughout Florida and elsewhere, without a thought for the potential consequences. First, it reminds us what can happen when counsel signs a settlement agreement or release without clearly indicating his or her capacity or intent. Although not the subject of the opinion, Dandar v Church of Scientology Flag Service Organization, No. 2D14-1511, Mar 2, 2016, results from a case in which plaintiff’s counsel became a party to a settlement agreement.
In a recent opinion, the Fifth District Court of Appeal reminds participants and counsel how important it is to at least appear at mediation.
I've been a Supreme Court of Florida-Certified Appellate Mediator since 2001, so I took special notice when Florida's 5th DCA specifically stated that representatives of the parties with full settlement authority were required to attend a mediation in person, unless excused from attendance by the court. The court's order, referring a matter to appellate mediation, further stated that the failure to appear could result in the imposition of sanctions.
January saw the opening of our current West Palm and Miami offices bringing the number of our South Florida conference rooms to 21. I have enjoyed working in our West Palm, Plantation, and Miami offices and look forward to being there more frequently in 2016.
Here is a partial list of what some of my UWWM colleagues have been up to in 2015.
Under the circumstances, my ethical and professional obligations are obvious, at least to me; confront the immovable forces with a discussion which assures that the decision-making is informed. This means (1) Trying to get the parties what they want; failing that, (2) Exploring the options available; and (3) Always making sure decisions are informed and consistent with self-determination. For my efforts, I may receive a little bit of “shoot the messenger.” Defense counsel may not agree with my observations in mediation. Fair enough; however, this is sort of the point when the alternative is turning decision-making over to others; you may get a decision you don’t agree with; at least my observations can’t hurt you.
I recently had the pleasure of moderating UWWM’s webinar, “The Seven Deadly Sins in Business Negotiation” featuring UWWM’s neutral Judi Lane. I was very happy to do so. I had previously mediated for Judi many times and had great respect for her as an attorney and as a negotiator. She also always demanded the most of me as a mediator. When she joined UWWM, she and I continued our exchange of thoughts and experiences with respect to mediation strategy and negotiation. I continue to learn a lot from her and, I hope, she from me. A common subject that always surprises me, although perhaps shouldn’t after so many years, is the extent to which a human element drives many business negotiations.