Institutionalization of Mediation in Florida: At the CrossroadsIn this article, Press identifies some of the positive and negative impacts of institutionalization on mediation by reviewing some of the intended and unintended consequences of Florida's court-connected mediation experience. While institutionalization has had many positive impacts, there also are potential reasons for concern.
In this article, the author provides an overview of the historical development of mediation in Florida, describes the current status of mediation within the Florida court system, and details some of the positive and negative consequences of the institutionalization of mediation drawn from the Florida experience. The article concludes with initial reflections on what this means for the future of mediation.
Institutionalization: Savior or Saboteur of MediationThis article is a reflection on the history and spread of the field of alternative dispute resolution (ADR). The author focuses on the increased institutionalization of ADR – particularly in relation to mediation within the court system, with examples drawn from Florida’s experience.
Mortgage Foreclosure Mediation in Florida - Implementation Challenges for an Institutionalized ProgramThis Symposium is filled with examples from around the country of states grappling with how to respond to the economic crisis in general and the overwhelming number of mortgage foreclosure cases in particular. In Part II of this article, the author identifies the key impacts institutionalization had on implementation efforts. Part III describes the various approaches pursued to address the obstacles. In this part, the author examines in detail the development of a rule to define “appearance” at mediation because of its implications for the practice of mediation as a whole beyond merely the foreclosure context. Part IV provides the current status of mortgage foreclosure cases in Florida and revisions to the general mediation framework with another special emphasis on appearance at mediation. In the conclusion, the author highlights what has been learned from Florida’s experience and what still remains to be learned.
Mediator Ethical Breaches: Implications for Public PolicyCourt-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or remove individuals from the list of qualified mediators if they have deviated from the standard expected of them. In this article, I will explore the public policy implications of mediator ethical breaches using the Florida state court-connected mediation experience as a prototype. Specifically, I will attempt to answer the following questions: What are appropriate goals for a grievance process from a public policy viewpoint? Should a grievance process include informal as well as formal means of reviewing grievances? How should a formal hearing process be designed to meet the public policy goals for establishing court-connected mediation programs as well as the interests of the litigants and the mediators?
In Part I, I will briefly explore the underlying public policy goals for the development of court-connected mediation both nationally and Florida in particular. In Part II, I explore the premise that a court is responsible for identifying “qualified neutrals” and for providing both a standard of conduct and grievance system if it is mandating or encouraging parties to use a mediation process as an alternative to trial. In Part III, I will use the Florida state court mediation program’s experience from April 2000 through December 2009 to examine the ethical breaches by mediators and their impact on the public policy goals underpinning the acceptance of court-connected mediation. In this section, I will also explore the concerns of complainants by examining the types of grievances filed and the outcomes sought in order to make the argument that a rehabilitative (rather than retributive) grievance process will best serve the public. Finally, I conclude with some recommendations to better meet the initial public policy goals for court-connected mediation and to better serve the public interest.
Law in the Shadow of Negotiation: On the Jurisprudence of Roger FisherThis chapter reviews the life work of one of negotiation’s most famous scholars and offers a wholly new observation. Roger Fisher did not understand negotiation as primarily something that happens in the shadow of the law. Rather, based on his years thinking about international conflict, Fisher offered a theory of negotiation as a form of legal ordering and, by extension, a theory of law as a form of negotiation — one with enduring relevance for dispute resolution today.
Fake Arbitration: Why Florida's Nonbinding Arbitration Procedure is Not Arbitration Within The Scope Of The Federal Arbitration ActDoes the Federal Arbitration Act (FAA) govern Florida's nonbinding arbitration procedure? At present, this question is unresolved. As its name suggests, the FAA generally governs arbitration agreements. But the FAA does not define "arbitration," and the U.S. Courts of Appeals have
different standards for what constitutes arbitration under the FAA. This Note discusses those different standards and argues that the Eleventh Circuit provides the most logical test for determining whether a particular dispute resolution procedure is FAA arbitration. Finally, this Note argues
that, under the Eleventh Circuit's standard, Florida's nonbinding arbitration procedure is not FAA arbitration.
Jackson v. Shakespeare Foundation, Inc.: Can Florida Courts Circumvent Precedent Set by the Supreme Courts of the United States and Florida Regarding the Enforcement of Arbitration Provisions?In February 2013, the Florida Supreme Court issued a ruling that to some-at least at first glance-may seem puzzling. In Jackson v. Shakespeare Foundation, Inc.,' the defendant, when attempting to sell a piece
of land, placed an advertisement describing the property that included the following language: "Topography and boundary survey completed recently," and "Wetlands study verifies No Wetlands."2 However, as the plaintiff would later find out through discovery, "[w]hen the [defendant] posted this advertisement, they had in their possession a Property Report Land Use Planning Analysis, which established, contrary to the advertisement, that 25% of the subject property constituted wetlands." When deciding this case, the Florida Supreme Court accepted that the plaintiff
"relied on the representations set forth in the advertisement" in deciding
to enter into a contract to purchase the property.
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