Getting Into and Out of Impasse: What to Do in the 5 Most Common Scenarios
UWWM Principal Kimberly Sands spoke at the Florida Justice Association’s Workhorse Seminar earlier this year. “It’s something I’ve done many times over the years, even before I began my mediation practice 16 years ago,” she writes. “This year the topic was ‘Getting Into and Out of Impasse,’ specifically ‘the steps you can and should take to eliminate or minimize failed mediations and impasses.’ As a mediator, I don’t judge my success or failure on whether a dispute settles or impasses at mediation; decision-making is beyond the role of the mediator. Some disputes impasse for good reasons. Some disputes go on to settle based on the strategy developed in mediation, often with the mediator’s continued involvement. However, I do consider it my responsibility to avoid impasse by exploring every avenue and opportunity for settlement with the parties.”
Part 2: The Wrong for Which There Is No Legal Remedy
A plaintiff in an institutional child sexual assault case had argued that his claims were timely under the doctrine of equitable estoppel. In rejecting this argument the court reasoned that, in order to find that the defendant was equitably estopped from asserting a limitation defense, the plaintiff would had to have been aware of his right to sue, and then fail to file because of the defendant’s conduct. In somewhat of a Catch-22 for the plaintiff the court concluded that this is contrary to his asserted position that he had no memory of the alleged abuse.
The Wrong for Which There Is No Legal Remedy
Numerous courts around the country have applied the delayed discovery doctrine to cases alleging childhood sexual abuse where the emotional response resulting from childhood molestation, “often coupled with authoritative adult demands and threats for secrecy,” may lead a child to deny or suppress such abuse from his or her consciousness. In 1992, the Florida legislature amended the limitation period applicable to intentional torts based on abuse. The relevant provision currently provides: An action founded on alleged abuse … or incest … may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later. Several courts have held that this section applies only to intentional tort claims against the perpetrator of the sexual abuse and not claims against an institution based on respondent superior or other theories of liability in which an individual or institution can be held liable for the intentional criminal acts of another.
Part 2: Trial May Be a Rarity, but Trial Lawyers Are Not
Part 2: In its analysis, the Court concluded that there was no showing or finding that without the prospect of a multiplier to an otherwise reasonable fee award, the Plaintiffs would have had difficulty finding competent counsel. The court held that there should be evidence in the record and findings of the court that without risk-enhancement the plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market. If there is no evidence that the relevant market required a contingency fee multiplier to obtain competent counsel, then a multiplier should not be awarded. “Simply put, there was no evidence that the Tampa Bay legal market could not provide competent counsel for the [Plaintiffs’] case at the prevailing hourly rates. Certainly, most (all?) attorneys would prefer to collect twice their market rate at the conclusion of a successful contingency fee case, a point that perhaps needed no expert testimony to illuminate. It does not follow, though, that that preference would create a dearth of competent lawyers who would have taken this case at the prevailing rate. On that critical point, this record is silent.”
Part 1: Trial May Be a Rarity, but Trial Lawyers Are Not
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.
Proposals for Settlement: Their Role, Sanctions, and Whether Time to Decide Can Be Enlarged by Court
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.
Dismissal Without Reserving Enforcement Rights May Limit Parties’ Recourse Under Rule 1.730
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.
The Power of Principle, Part 2
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.
The Power of Principle, Part 1
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.
Wrapping up a Hot Summer with a Cool JADC Retreat
I recently had the pleasure of attending the 2015 annual retreat of the Jacksonville Association of Defense Counsel at the Ritz Carlton on Amelia Island. Not only was the location a treat, but also the program, moderated by Boyd & Jenerette appellate attorney Kansas Gooden, was as good as any I have attended. UWWM was a sponsor of the event. UWWM Shareholder Bob Cole spoke on recent trends in mediation and ADR, including proposed amendments by the Florida Bar ADR Rules and Policy Committee currently under consideration by the Florida Supreme Court.