ADR Section News & Tips September 2019
Message From the Chair
We all know the value in being prepared. Whether it’s for a trial, a mediation or a client meeting, it pays to put in the time ahead of the event to avoid problems. Preparation occurs on several levels for mediations/arbitrations. As my family prepared for the recent hurricane, several analogies came to mind:

Physical: Make sure you have the necessary tools and equipment. Like a store of batteries, a command of the facts and knowledge of the law can provide an arsenal of tools from which to draw and build confidence for success.
Mental: Riding out a storm and powering through a mediation requires stamina and preparation for the mental challenge ahead. A positive mind-set can make the difference as to whether a stressful situation becomes an opportunity for growth, or a devastating experience.

Emotional:   Having an awareness of the emotions that will arise and being ready to address them can prevent a trying situation from causing you, or your client, to go off the rails. Human nature causes us to want to avoid pain. Anticipating emotional responses can help to minimize the impact of harmful actions or comments.

Managing Expectations: Being unprepared for a realistic outcome can cause even a better-than-expected result to be disappointing.  Gather information and adjust expectations accordingly. Viewing conflict through a lens that reflects the most likely outcomes can pave the way for greater satisfaction with the final result.

For those of us who were spared the brunt of a direct hit by Hurricane Dorian, let’s not forget the impact that a stressful event can leave on those who have soldiered through it. We have the tools to transform a highly distressing event into just another bump in the road.

Shout Out to our talented members of the ADR Section who served as speakers at the annual DRC Conference.  Chris Magee, Michael Lax, Meah Tell, Kim Torres and Christy Foley shared their expertise on mediation and arbitration during lively and informative discussions. Thanks for representing the ADR Section and supporting the DRC.

Kim Watson Torres
2019-2020 Section Chair
Torres Mediation Services, Melbourne
Upcoming Events
Mentoring Matters for Mediators
Once the process of becoming a certified mediator is complete, many mediators may consider their mentoring obligations fulfilled, except for the requests received from other newly-trained mediators seeking certification.

What does mentoring entail, and why should the mediation profession embrace its role in this long-standing tradition?
What is Mentoring?

Mentoring is defined as coaching, tutoring or guiding another; typically the party seeking guidance is less experienced than the party providing the oversight. The term harkens back to the Trojan Wars: Mentor was a friend of Odysseus, who (with amazing foresight it appears) requested Mentor function in this role for Odysseus’ son while the famed voyager embarked on his travels. Mediators need mentors. It is rare in my experience to mediate as part of a team of mediators. In most instances, the neutral functions alone. While counsel may be present, their advocacy role on behalf of their clients restricts their input into the process: working to advance their client’s position over the opposing side.  A newly-trained mediator who is observing as part of the certification process is usually not going to provide guidance or support to the mediator. In fact, the process is set up to function the other way round — the candidate for certification is watching and asking questions to be sure the process is clearly understood. If you are a certified mediator, finding a group of mediators to provide feedback, serve as a sounding board, suggest alternative approaches and provide input on ethical questions is incredibly valuable. 

Obligation of Mediator to Mentor Others

A s mediators, we have ethical obligations to the profession of mediation. These obligations are not time-limited but continue as long as you are a certified or court-appointed mediator. See Florida Rules for Certified and Court-Appointed Mediators (March 2018). In particular, Rule 10.600 Mediator’s Responsibility to the Mediation Profession states: A mediator shall preserve the quality of the profession. A mediator is responsible for maintaining professional competence and forthright business practices, fostering good relationships, assisting new mediators , and generally supporting the advancement of mediation. (emphasis added).

Rule 10.690 Advancement of Mediation also provides instruction. Subsection (b) provides: (b) New Mediator Training. An experienced mediator should cooperate in training new mediators, including serving as a mentor . (emphasis added).

Value in Mentoring, Both to Mentor and Mentee

The ADR Section of The Florida Bar has recognized the need to advance mentoring in this profession. First, the Section understands that succeeding generations of mediators should have the benefit of experienced instruction from more seasoned mediators. This process allows newer neutrals to gain experience and continue to grow in their profession. Second, increasing the number of mediators with background and experiences that cover a broad spectrum allows a neutral to address more disputes and engage in more creative problem-solving with parties and counsel. Neutrals from outside the legal profession may have valuable experiences to share and skill sets to draw upon but may face obstacles because of their lack of immersion in the practice of law. Mentoring can help address that perceived shortfall.  Last, mentoring helps ensure that the mediation techniques — too numerous, complicated or nuanced to fit into a new mediators’ training curriculum — get passed along to other professional mediators.    

Toward that end, the ADR Section is presenting its first ever Mentoring Academy October 25-26, 2019.  The number of attendees is limited to 50. The details are below. Do not miss this opportunity for instructive feedback from experts in the field. Network with mentors with decades of experience and build lasting relationships. We look forward to seeing you.  
Tuesday, Oct. 22: The Ethics of Mediated Settlement Agreements   —   Lessons Learned from Case Law
Live audio webcast  by  Fran Tetunic , Adjunct Professor of Law and Director, Dispute Resolution Clinic at Nova Southeastern University Shepard Broad College of Law.

Register online now for this one-hour Ethics CLE. You'll learn more about mediated agreements and review of the ethical obligations of mediators and lawyers, mediation confidentiality and privilege, and reducing the likelihood of being called to testify.

1.0 General CLE/CME, 0.5 of which may be applied toward Ethics. Oct. 22, noon - 1 p.m.  Course No. 3457. ADR Section members $50; non-section members $85.
Register Now for the Inaugural Mentoring Academy
Only 50 Spots Available!
Certified mediators: Are you ready to advance your mediation practice? Join us at the Mentoring Academy on Oct. 25-26, 2019 and expand your competency and experience. Faculty for the 2019 Mediation Academy are among the most experienced mediators in Florida. Some work in large firms and others practice solo. Each is certified as a County, Circuit Civil or Family mediator. View the brochure .

COURSE NO. 3260 .  10.0 hours General CLE; 10.0 hours CME . 1.0 Ethics CLE/CME; 9.0 Professionalism CLE. ADR Section members register for only $390. Non-section-member registration is $425 and includes a one-year section membership.

  • Practice techniques and receive live, immediate feedback that will make you a better mediator.
  • Learn best practices for transitioning your practice from direct client representation to dispute resolution as a neutral.
  • Gain appropriate, ethical mediation techniques to address a complex circuit civil litigation.
  • Advance your experience in handling hurdles that can appear in complex cases.
  • Improve how you handle openings in circumstances ranging from hostile to congenial—what to do and when.
  • Get pro tips on how to test party-imposed limitations without overstepping ethical boundaries.
  • Increase your statewide network of mentors and co-mediators.
ADR Section Member News
Executive Council member Christy Foley of e-Mediation Services served as a substitute member of the ABA House of Delegates for the State of Florida at the ABA Annual Conference in San Francisco. She also presented two workshops entitled “MEAC: Year in Review” to standing-room-only crowds at the DRC. She was a panelist on the ethics plenary at the DRC, speaking about the ethics of online dispute resolution. Christy also retained her seat as Chair of MEAC for another year.
Executive Council member Natalie Paskiewicz of Paz Mediation is celebrating three years of serving Tampa Bay’s circuit civil and family mediation needs. She hosted a happy hour in St. Petersburg on Sept. 11 to mark the occasion.
Executive Council member Oscar Sanchez of OAS Mediation presented on Ethics during the National Business Institute's June 25 Marijuana Business Law in Florida seminar in Miami.
Section Chair Kim Torres, Executive Council member Michael Lax and 2018-2019 Section Chair Chris Magee were among the speakers who representated the ADR Section at the 2019 Florida Dispute Resolution Center Conference. Meah Tell and and Christy Foley also were presenters.
Where Can You Get Ethics CME Credits?
HERE!!

DID YOU KNOW ... that CLE qualifying courses can also be used for CME credit? Why not earn both at the same time?  The ADR Section offers webinars and seminars that can be reported for both CLE and CME credits (except for presentations on the topic of Arbitration). Take a look at our catalog of offerings. We are adding more selections every month.
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MEAC Opinion Summaries
Special thanks to ADR Section member Christy Foley , MEAC chair, for providing the opinion summaries. 

2019-001: Mediators must maintain the confidentiality of the mediation UNLESS disclosure is required by law OR the parties agree to have information disclosed . Addresses whether mediators for FCHR or HUD may record all action steps from their mediations (including offers for settlement that were made during mediation) in a department-wide management system. If there is no law requiring disclosure of confidential mediation communications, then mediators must get parties to sign a waiver of confidentiality in order to mediate the case and still comply with the recording requirements of FCHR or HUD. If no waiver is signed, then the mediator should decline to mediate the case.

2019-002: Decisions made during mediations are to be made by the parties. Addresses whether a mediator can allow parties to agree to a settlement that includes an interest rate that the mediator considers usurious. In order to preserve the parties’ self-determination, the parties are the ones who must make the decisions during a mediation. All the mediator may do is: (a) advise the parties of the right to seek independent legal counsel and/or (b) withdraw from the mediation if the mediator feels his ability to be impartial has been compromised.

2019-003: Mediators must honor parties’ right to self-determination, act impartially, and avoid coercion. Addresses whether, in a joint session, a mediator can ask a party for copies of his evidence, can ask parties to take action towards settlement based on a lack of evidence in mediation, or can tell parties how a judge will handle said lack of evidence. MEAC stated that mediators shall not act as legal advocates or evaluators of a case. Instead, mediators may use caucus sessions to reality test with parties, but the language used must be such that the mediator appears to remain impartial and neutral. 

2018-004: Mediators must comply with relevant administrative orders, court rules, and statutes. Addresses whether an administrative order that required mediators to unilaterally set the date for mediation if the parties couldn’t agree on a specific date violates the parties’ self-determination. MEAC stated that the mediator unilaterally setting the date for mediation did not violate the parties’ self-determination IF the mediator was open to resetting the date to accommodate the parties in the time frame ordered by the court.
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