The Right Way to Do the Right Thing

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    03-Jul-2015

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Florida mediator Robert A. Cole and civil trial lawyer Rutledge R. Liles will use a series of hypothetical ethical dilemmas arising during the mediation of a "typical" personal injury case to explore what the law says, what guidelines advise and how to apply these standards to practice during mediation. For the fact scenario, please visit http://www.uww-adr.com/?p=6166.

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  • 1. Upchurch Watson White & MaxMediation Groupand the University of FloridaLevin College of LawInstitute for Dispute Resolutionare proud to cosponsor todays Webinar:The Right Way to Dothe Right Thing

2. Our moderator,Sandy UpchurchMediation CounselUpchurch WatsonWhite & Maxsupchurch@uww-adr.comuww-adr.comOur presenter,Robert A. ColeShareholderUpchurch WatsonWhite & Maxrcole@uww-adr.comuww-adr.com2Our guest,Rutledge R. LilesManaging partnerLiles, Gavin &George, P.A.rliles@lilesgavin.comwww.lilesgavin.com 3. The Right Way to Dothe Right ThingEthical Dilemmas In MediationSlides based on a presentation by Lawrence M. Watson;Fact scenario by Lawrence M. Watson(http://bit.ly/fact_scenario) 4. Ethical Standards - References ABA Model Rules of Professional Conduct ABA/SOL Guidelines for Ethical SettlementNegotiations www.abanet.org/litigation/ethics/settlementnegotiations Fla. Rules For Certified & Court AppointedMediators4 5. The Case:Peter Polyps v.Vibra-GlowFertilizers, Inc.5 6. Peter Polyps v. Vibra-Glow Fertilizers, Inc. Peter Polyps Plaintiff Melody Maters Plaintiffs attorney Vibra-Glow Fertilizers, Inc. Defendant Bluesuit, Whiteshurtz & Tassels Vibra-Glowcorporate counsel Slippery Mutual Insurance Co. Vibra-Glows insurer Bill Billum insurance-appointed defense counsel forVibra-Glow Roy Reconcile case mediator 6 7. Accepting the EngagementConflicts of Interest MediatorRoy Reconcile Mediation, Inc. Compromised Impartiality? Non Waivable Conflict?7 8. Accepting the EngagementConflicts of Interest -Mediator FRCM 10.340 (a) Mediator shall not mediate amatter that presents a clear or undisclosed conflict. . .Conflict arises when any relationship . . .compromises or appears to compromiseimpartiality FRCM 10.340(c) After disclosure, a mediator mayserve if all parties agree FRCM 10.340 (b) Burden of disclosureonmediator (ASAP)8 9. Accepting the EngagementConflicts of Interest -Mediator FRCM 10.340 (a) Mediator shall not mediate amatter that presents a clear or undisclosed conflict. . . FRCM 10.340(c) . . . if a conflict clearly impairs . . .impartiality the mediator shall withdrawregardless of . . . agreement of parties. COMMENT - circumstances . . . cannot bereasonably regarded as allowing impartiality 9 10. Accepting the EngagementConflicts of Interest -MediatorNon-Waivable Conflict? FRCM 10.310 Self Determination. Decisions tobe made by parties. Comment: Critical right to self determination . . .all phases of mediation.10 11. Statements About SettlementAuthority The Lawyers Model Rule 1.2(d) unethical to assist client infraudulent act Model Rule 3.3(a) lawyer must disclosematerial facts to a tribunal Model Rule 4.1(a) - unethical to make falsestatement of fact to a third person11 12. Statements About Settlement Authority The Lawyers Model Rules 4.1(b) lawyer must not fail to disclose material fact tothird parties (to prevent fraud etc.) unless such disclosure wouldviolate the lawyers confidentiality obligation. Model Rules 1.6 Confidentiality obligation covers everythingclient discloses to lawyer unless disclosure necessary to preventdeath or substantial bodily harm. Guidelines for Ethical Settlement Negotiations, 3.3.1A lawyer must comply with the rules of professional conduct duringthe course of settlement negotiations . . . and may not counsel orassist the client in conduct violating fiduciary duty owed to others. 12 13. Statements About Settlement Authority The Lawyers Model Rule 4.4 A lawyer shall not engage inbad faith use of the litigation process. Guidelines for Ethical Settlement Negotiations4.3.1 An attorney may not employ thesettlement process in bad faith.11 14. Statements About Settlement Authority The Mediator FRCM 10.360 Confidentiality:(a) Scope. A mediator shall maintainconfidentiality of all information revealed duringmediation except where disclosure is required bylaw. (b) Caucus. Information obtained during caucusmay not be revealed by the mediator to any othermediation participant without the consent of thedisclosing party. 14 15. Statements About Settlement Authority The Mediator FRCM 10.400 - Mediator's Responsibility to the MediationProcess - A mediator is responsible for safeguarding themediation process. [Mediation] benefits . . . are bestachieved if the mediation is conducted in an informed,balanced . . . fashion.15 16. Statements About Insurance Coverage The Lawyers Hard cheese, Peter looks like Melody missed it! Is insurance coverage a material fact requiring ModelRule 4.1(b) disclosure?16 17. Statements About Insurance Coverage The Mediator FRCM 10.360 Confidentiality:(a) Scope. A mediator shall maintain confidentialityof all information revealed during mediation exceptwhere disclosure is required by law. (b) Caucus. Information obtained during caucusmay not be revealed by the mediator to any othermediation participant without the consent of thedisclosing party. 17 18. Substantive Facts The Lawyers Model Rule 4.1 a lawyer shall not(a) make a false statement of material fact(b) fail to disclose a material fact (if) necessary to avoid .. . fraud (subject to Rule 1.6 Confidentiality) COMMENT: Lawyer required to be truthfulwhen dealing with others on clients behalf;misrepresentations can occur by partially truebut misleading statements or omissions18 19. Substantive Facts The Lawyers Model Rule 1.6 (Everything is confidential, but. . .) alawyer may reveal confidential information (including anymisrepresentations by the client) to the extent the lawyerbelieves it necessary to prevent reasonably certain deathor substantial bodily harm19 20. Substantive Facts The Lawyers Model Rule 8.4(c) A lawyer is prohibited from engagingin conduct involving dishonesty, fraud, deceit ormisrepresentation" Model Rule 3.4(a) A lawyer shall not unlawfully . . .conceal . . . material having . . . evidentiary value20 21. Substantive Facts The LawyersGuidelines for Settlement Negotiations4.1.1. In the course of negotiatinga settlement,a lawyer may not knowingly make a falsestatement of material fact to a third person.4.1.2 - In the course of negotiating . . .asettlement, a lawyer must disclose a material factto a third person when necessary to avoid fraudulent act by a client, unless disclosure isprohibited by the ethical duty of confidentiality. 21 22. Substantive Facts The MediatorFRCM 10.360 Confidentiality: (a) Scope. A mediator shall maintainconfidentiality of all information revealedduring mediation except where disclosure isrequired by law. (b) Caucus. Information obtained during caucusmay not be revealed by the mediator to anyother mediation participant without theconsent of the disclosing party. 22 23. Substantive Facts The Mediator FRCM 10.310. Self-Determination.(c) Misrepresentation Prohibited. A mediator shall notintentionally or knowingly misrepresent any materialfact or circumstance in the course of conducting amediation.23 24. Substantive Facts The Mediator FRCM 10.310. Self-Determination.(a) Decision-making. Decisions made during a mediation areto be made by the parties. . . A mediator is responsible forassisting the parties in reaching informed . . .decisions whileprotecting their right of self-determination.24 25. Substantive Facts The Mediator FRCM 10.420 Conduct of Mediation(b) Adjournment or Termination. A Mediator shall (4) terminate a mediation entailing fraudor unconscionability25 26. Negotiating Positions The LawyersModel Rule 4.1 A Lawyer shall not: (a) make a false statement of material fact (b) fail to disclose a material fact when necessary to avoidfraudBUT:26 27. Negotiating Positions The Lawyers Model Rule 4.1 Comment: Under generally acceptedconventions in negotiation, certain types of statementsordinarily are not taken as statements of fact. Estimates orprice or value . . .and a partys intentions as to anacceptable settlement of a claim are in this category . . .27 28. Negotiating Positions The Mediator FRCM 10.310(c) Misrepresentation Prohibited. A mediatorshall not intentionally or knowingly misrepresent anymaterial fact or circumstance in the course of conducting amediation.28 29. Negotiating Positions The Mediator QUERY: Does a misstated state of mind regardingsettlement evaluation or maximum authority becomea statement of fact when the mediator is asked to passthe message? QUERY: Is the Mediator misrepresenting a circumstance,if not a material fact, when delivering the message?29 30. Legal Advice, Legal Information,and Malpractice The Mediator FRCM 10.220. Mediator's Role:The role of the mediator is to reduce obstacles tocommunication, assist in the identification of issues andexploration of alternatives, and otherwise facilitate voluntaryagreements resolving the dispute. The ultimate decision-makingauthority, however, rests solely with the parties.30 31. Legal Advice, Legal Information,and Malpractice The Mediator FRCM 10.310. Self-Determination.(a) Decision-making. Decisions made during a mediationare to be made by the parties. A mediator shall not makesubstantive decisions for any party. A mediator isresponsible for assisting the parties in reaching informedand voluntary decisions while protecting their right of self-determination.31 32. Legal Advice, Legal Information, andMalpractice The Mediator FRCM 10.300. Mediator's Responsibility to the Parties[A] mediator's responsibility to the parties includes honoringtheir right of self-determination; acting with impartiality; andavoiding coercion, improper influence32 33. Legal Advice, Legal Information, andMalpractice The Mediator FRCM 10.310 Self Determination(c) Misrepresentation Prohibited. A mediator shall notintentionally or knowingly misrepresent any material fact orcircumstance in the course of conducting a mediation.33 34. Legal Advice, Legal Information, andMalpractice The Mediator FRCM 10.370(a) Providing Information. Consistentwith impartiality and self-determination, a mediatormay provide information qualified by training orexperience to provide. FRCM 10.370(c) Providing Opinions. Consistent withimpartiality and self-determination, a mediator maypoint out possible outcomes discuss merits of claim ordefenseA mediator shall not(opine) how the courtwill rule 34 35. Legal Advice, Legal Information,and Malpractice The Mediator FRCM 10.370 COMMENTThe primary role of the mediator is to facilitate opportunityto resolve dispute by agreement if (parties) choose to doso. A mediator may assist in that endeavor by providingrelevant information. . . A mediator may also raise issues anddiscuss strengths and weaknesses of positions underlying thedispute.35 36. Legal Advice, Legal Information,and Malpractice The Mediator Rule 10.310 COMMENTMediation styles and techniques may vary a line is crossedand ethical standards are violated when any conduct of themediator serves to compromise the parties basic right to agreeor not to agree.36 37. Settlements The Mediator FRCM 10.420 Conduct of Mediation(b) Adjournment or Termination. A Mediator shall(3) adjourn or terminate if mediator believes any party isunable to participate meaningfully in process(4) terminate a mediation entailing absence of bargainingability37 38. Settlements The Lawyers Model Rule 5.6(b);Lawyers are expressly prohibited from offering or making asettlement agreement that includes a restriction on a lawyersright to practice law.38 39. Settlements The Lawyers Guidelines to Ethical Settlement Negotiations, 4.2.1A lawyer may not propose, negotiate, or agree upon a provisionof a settlement agreement that precludes one partys lawyerfrom representing clients in future litigation against anotherparty.39 40. Settlements The Lawyers Legal Restrictions On Confidential Settlement Agreements Issues of Public Policy Public health and well being Safety Product Defect Cases Medical Malpractice Cases40 41. The Right Way to do the Right ThingConclusion Ask the right questions Triangulate your ethical position Steer clear of trouble; avoid the shoals with creativealternative pathways What would Mom want you to do . . .?41 42. The RightWay to Do theRight ThingFlorida BarCourse #1406439N1.5 CLE CreditsGeneral/EthicsPlease contact Bob atrcole@uww-adr.com withquestions or commentsregarding content.Upchurch Watson White & Max Mediation Groupuww-adr.comPlease email cklasne@uww-adr.com with questions about course number, Webinar recording, etc.Daytona Beach Maitland/Orlando Jacksonville Miami Fort Lauderdale/Plantation West Palm Beach42

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