Local Government Charette

Florida Cross Collaborative Efforts – shame on me…….

2010-01-07T14:13:00.004-06:00

My last blog attempted to urge Florida governments to accept and embrace the cross collaborative approach. Someone must have read it as I received a follow up email, I believe from John Folk-Williams of Cross Collaborate, reminding me of the great work being done in Florida by the Florida Conflict Resolution Consortium and its Director, Robert Jones.

And, frankly, shame on me… I am very aware of the good work being done by the Consortium and in my blog I should have offered a tip of the hat to their excellent work and leadership in the field of cross collaboration. They are successfully resolving public policy issues on a large scale in areas such as education, transportation, water resources, natural resources, land use and the like.

However, in my defense, as I was writing my blog I was thinking about all of the little matters that clog up local and state governments that should be addressed with a cross-collaborative approach but simply are not. Let’s think small scale for a minute. Let’s think Hatfield and McCoy.

It is the small neighborhood disputes that get the audiences a’rumblin at commission meetings. It is the big box store threatening to move into town that gets tempers flaring and gets local politicians’ phones ringing off the hook. Cross collaborative efforts need not wait for the ticking time bomb such as cross-jurisdictional annexation or water disputes. Even for the smaller issues that may only ruffle the feathers of a few citizens I encourage local and state government to focus more on preventative medicine rather than simply treating the symptoms.

So, mayors, town managers, planning staff and city and county attorney offices, before you hang up that phone after listening to someone rant and rave for what seems like forever, think about what can be done to put out that fire. In today’s newspapers alone I read the following headlines: “Roosters’ early morning calls have suburban Delray residents crowing,” “Palm Beach County schools chief revises disputed academic programs,” It may be time to suggest neighborhood mediation to air the issue out and begin working on a solution that may just solve the problem once and for all.

And for a shining example of cross collaborative efforts from today’s papers: Volusia County Public Works Departments hosts “Workshop to tackle trail plan.” Looks like Volusia County “got the memo!”

- Sandra C. Upchurch
supchurch@uww-adr.com

Cross Collaboration – come on Florida, get on this bandwagon!

2009-11-30T15:53:00.007-06:00

Public policy collaboration. What a concept!! This is all the rage in California but appears to be in only the most infantile stages of development in Florida.

According to John Folk-Williams, the publisher and editor at Cross Collaborate, “governance today intertwines the public, private and nonprofit sectors in the management of public policy and the delivery of public services as never before. The sphere of governance revolves around partnerships, interagency agreements and cross-sector efforts of many types.” In Florida it would appear that government officials and staff agree with this in concept but as yet are unclear about how to insert cross collaborative techniques into their policy-making to the benefit of all interested parties. It is this proactive approach which led me to leave the government sector and enter the field of alternative dispute resolution with the Upchurch Watson White and Max Government Affairs Practice Group. It is my sincere belief that most, if not all, hot button political issues can be addressed constructively early on to avoid long drawn out decision-making processes, stalled projects and ugly, unproductive public debate.

The helpful blogs at Cross Collaborate discuss in an ongoing forum effective public outreach, consensus building, deliberative democracy techniques, resistance to change, and so much more all in the context of public policy and governmental decision-making. It is just a must-read blog for me and I hope it becomes a must-read for you too.

As an aside, if you are involved in a cross-collaborative public policy project in the state of Florida, give me a heads up and tell me what you are doing and how it is working. I welcome the input and the insight and who knows, your project may well become the subject of my next blog.

- Sandra C. Upchurch
supchurch@uww-adr.com

Can’t we all just get along?

2009-11-09T15:22:00.005-06:00

I envision a world where developers meet with citizen groups and neighboring property owners early on in the development process.

I envision a world where local governments actively seek direct input from the community prior to developing new ordinances and voting upon controversial projects.

I envision peaceful commission/council meetings where all the kinks have been ironed out prior to public meetings so that all that is left is the standing ovation, the words of commendation for the cooperative effort and the pounding gavel signifying the end of the meeting.

An article in The Florida Bar Journal reminds me that others have this same vision. Dana L. Brown, the environmental enforcement administrator for the City of Jacksonville, Environmental Quality Division, and Lee White, a recent graduate of Florida Coastal School of Law, have written an article entitled “Noise: A Land Use Dilemma? A Case Study of the City of Jacksonville” which demonstrates that the City of Jacksonville, Florida wants to be proactive rather than reactive in its approach toward noise issues.

How refreshing. You see, we don’t seek world peace or cats and dogs living together in harmony, just a little bit of effort, discussion and perhaps some facilitated negotiation or mediation on the front end to avoid the fight and ugliness at the back end.

Is that asking too much?

-Sandra C. Upchurch
supchurch@uww-adr.com

Registered Sex Offenders – No Place to Call Home?

2009-08-28T11:46:00.002-05:00

As a local government attorney in Florida I struggled with the political pressure to draft an ordinance that dictated residency restrictions for registered sex offenders. I was directed to draft requirements more strict than those imposed by state law. What I came up with was tough, I mean REALLY tough. And, at the end of the day, the politicians told their constituents that they were better protected from these predators. Intellectually I knew that those residency requirements were a false promise which offered nothing more than a false sense of security. For example, they did not prohibit sex offenders from driving by a bus stop or a school or a library or the beach or a park. Those residency requirements simply prohibited residing near those points of youthful activity. Those requirements did not prohibit attending a party at a house that was near a bus stop, school, library, beach or park. Those residency requirements simply prohibited residing near those points of youthful activity. I would imagine if one was going to commit a heinous crime against a child, a little thing like one living more than 2500 feet away is not such a big obstacle to overcome.

Many argue that driving sex offenders out of residential neighborhoods is making them harder to track for the Department of Corrections. As the mother of young ones I for one do agree that I would rather know where they are and have them closely monitored than have them homeless and virtually impossible to track.

And, what about those that argue that the standard of behavior that results in the label of “sex offender” may be a bit off target? Some say that urinating behind a building has resulted in their conviction as a sex offender – surely I am not scared of that guy!

I thank Ronald S. Chapman for his blog on this topic - His blog got me thinking about this subject again and I always think a bit of self-examination/self reflection is a good thing. For now – round and round and round we go – where this issue will stop, no one knows…

- Sandra C. Upchurch

supchurch@uww-adr.com

Web 2.0: A brief digression from mediation

2009-08-26T10:16:00.000-05:00

Are you a technophobe afraid to plug in your hairdryer? Do you scream out for your assistant to rush in to your aid each time your word document simply “disappears” from your screen? Are you the black thumb of death to any computer you touch?

Unfortunately for you it is now terribly chic to efficiently maneuver through your computer’s PowerPoint application. And today it is cool to carry an extra flash drive on your key chain. Blogging has become a way of life. And Facebook, Linkedin and Twitter? If you’re not there – well fuggetaboutit!!!

If you are still leery of the web and its social networking capacity, I provide you with the following must-do social networking steps you can take to dip your toe into these uncharted waters.

1) Establish your internet presence with a webpage for your firm. Profile the members of your firm. Identify your areas of specialty. Include location and contact information.

2) Read blogs on topics of interest to you and your practice. Comment on others’ blogs. Subscribe to blogs to keep updated and current.

3) Write a blog at least once/week. Write about matters of interest to you and your potential clients. Link your blog to your website, other websites and other blogs. Give readers a glimpse into your personality with your writing style.

4) Create a Linkedin account. Use it to refer readers to your blog, your website and your profile. Slowly begin accumulating connections. Establish meaningful connections not just numbers.

5) Create a Facebook page. I suggest keeping a professional page separate from a family and friends page. Link it to your website, blog and Linkedin and Twitter accounts. Collect meaningful friends not just numbers of friends.

6) Establish a Twitter account and tweet at least several times each week. This is just flat out fun! Join Twibes of interest to you and your practice area. Retweet things of interest to you. Follow people in fields of interest to you and relevant to your practice area.

7) Become proficient with PowerPoint or hire someone who is. OK this is not really social networking but an important practice tip. Use this for your mediation opening statements and at trial. Just do it!!

These are just the basics and believe me there are many additional ways to supplement your Web 2.0 efforts such as webinars, podcasts, site engine optimization consultants and the like but take baby steps first. Come on in – the water is fine.

Sandra C. Upchurch
Mediation Counsel
Upchurch Watson White and Max Mediation Group
Blog: http://uwwm.blogspot.com/
Twitter: @scupchurch
Website: http://uww-adr.com/
Facebook: http://www.facebook.com/sandra.c.upchurch
Linkedin: http://www.linkedin.com/in/sandracupchurch

Mediating Government Disputes – Confederate Flag Controversy

2009-08-25T09:19:00.000-05:00

The Miami Herald recently wrote about a controversy brewing in Homestead concerning the flying of a confederate flag at an upcoming Veterans Day parade. The City Council and Chamber of Commerce are just two of the parties to the upcoming mediation.

Mediation is being used more and more in pre-suit situations in the government sector and with community disputes as it is cost effective and allows the parties to constructively share their perspectives.

- Sandra C. Upchurch

High Fives to...

2009-08-24T12:39:00.000-05:00

the 16 finalists for the 2009 Innovations in American Government Award from the Ash Institute for Democratic Governance and Innovation at the Harvard Kennedy School in Cambridge, Mass, including Orange County, Florida for its Primary Care Access Network, Kingsport, Tennessee for its Higher Education Initiative and Chula Vista, California for its Residential Abandoned Property Program, just to name a few.

These governments set out to solve a problem that was unique to their community or that other governments thought too big to overcome and solve it they did and in a big way.

For a full listing of all nominees click here.

Just goes to show you that government can be innovative too. I will keep you posted regarding who the big winners are!! And, if you would please forgive my Florida roots - go Orange County!!!

- Sandra C. Upchurch

I Never Thought of it That Way...Spillover Parking

2009-08-21T14:42:00.000-05:00

Spillover parking need not be avoided and perhaps in this economy should be encouraged so says Michael Lewyn in his article, When Spillover Parking Isn't So Bad.

As a mediator I am constantly trying to think outside the box, constantly trying to fit that square peg in a round hole and constantly trying to switch perspectives in my eternal hunt for resolution. I love it when someone helps me look at something a different way. Michael Lewyn has done just that.

Lewyn’s article can and should be kept in the tool-belt of local government planners and administrators and indeed can be a useful tool for those of us in the field of alternative dispute resolution. In this economy, parking in one location to access a business at another nearby location may very well help our economy. After all if you park at the local pet store because your doctor’s parking lot is full, aren’t you more likely to pick up that cat litter or fish food that you have been meaning to pick up? Businesses are often required to accommodate the maximum number of customers/clients that they could possibly have in any given hour. However, how often is that maximum actually realized? Perhaps it would cut down on development costs to allow the developer to install slightly less parking and perhaps the real benefit would be to neighboring businesses. Perhaps...

- Sandra C. Upchurch

High Fives to...

2009-08-19T10:38:00.001-05:00

Bryant Miller Olive, P.A., for becoming a partner in the Law Office Climate Challenge offered by the American Bar Association and the Environmental Protection Agency. To become more “green” and ultimately help us all, the firm has committed to recycling, double-sided copying and printing and a whole host of other environmentally friendly practices.

Join Bryant Miller Olive and rise to the Law Office Climate Challenge. For more information about the Climate Challenge, please see: Climate Challenge Overview, WasteWise, Green Power and ENERGY STAR.

- Sandra C. Upchurch

Sometimes Mediation Is Not the Answer… Yes, I Really Said That!

2009-08-18T09:20:00.000-05:00

“Don’t rush to mediate that employee complaint” is an intriguing article that demonstrates one situation in which pre-suit mediation is simply not appropriate. Employers need to protect their victim employees in situations where allegations have been investigated and substantiated.

The proper and delicate handling of situations of bullying/harassment can indeed serve to avoid future litigation. Forcing a victim and perpetrator into a room together to work out their differences may indeed have the opposite effect and rather add fuel to the smoldering fire. You might want to check your human resource policies to insure that alternative dispute resolution processes are not inserted too early, before a truly victimized employee has had a chance to feel that their employer is working hard to protect them and make things right. My thanks to Siobhan Flores-Walsh, Australian Business Lawyers, for her insight.

- Sandra C. Upchurch

Foreclosures and code enforcement – the secret local government bailout plan

2009-08-05T14:08:00.000-05:00

Larry Schooler writes in his April 7th blog of the problems presented by abandoned and vacant buildings. The blog discusses the problem in Texas but in truth and in fact the issue of abandoned and vacant buildings is popping up nationwide as the housing slump continues and foreclosures are on the rise. The national focus has been on irresponsible banks lending to individuals without requiring proof of income or ability to pay. The national focus has been on irresponsible individuals stretching to get into a home that is well beyond reach.

While the nation focuses on the big picture, local governments are realizing that the foreclosure crisis has an insidious effect on their budget and politics. When the neighbors move out because they bought more house than they could afford, the house sits vacant and in limbo for months and months and months (get the picture??) at a time. The bank may not “own” it. The neighbors may “own” it but they are long gone. The mortgage servicing company may not “own” it. Certainly the city or county does not own it but whose phone starts ringing when the neighbors’ yard is overgrown or the pool enclosure has been breached or the fascia is falling off? You guessed it, your friendly code enforcement department’s phone is ringing off the hook right now. Foreclosures have very much become a local government code enforcement nightmare of epic proportion.

The hammer for code enforcement departments is the ability to assess a fine against the property while the problem remains uncorrected. That fine becomes a lien once recorded. The problem with this tactic is that the overgrowth problem or pool enclosure problem or fascia problem remains – unsightly, for sure, but also a drain on neighboring properties’ value, henceforth, all the complaints. Then, when, and if, the property sells, there may or may not be funds enough to pay off the lien. Or when a buyer magically appears, they come begging to the local government for forgiveness of the lien since they were so kind as to take on the unsightly property.

Another option is for cities and counties to fix the yard overgrowth, pool enclosure or fascia and asses the costs of repair against the property. This is all well and good but when there is a “short sale” there is not excess money and the local government is left holding the tab serving in effect as a property maintenance bureau for abandoned and vacant homes. Is this really a government function?

I have heard of the mythical “super-lien” whereby code enforcement departments can lien a property and that lien takes priority over all others but my lawyerly red flag goes up each time I ponder such liens. Can they possibly be enforceable? We are in the midst of government bailouts but don’t think those are limited to our federal government. Local governments are doing their fair share of bailing out too and just ask your local code enforcement department, there is no end in sight.

-Sandra C. Upchurch

Opportunity Lost...

2009-08-03T17:54:00.000-05:00

Patty Salkin writes in her April 1, 2009 blog Denial of Zoning Amendment Constituted Reverse Spot Zoning of a Miami-Dade land use case subjected to two levels of appellate review presumably at great expense and presumably prolonging final resolution.

How disappointing that more land use attorneys and governmental entities aren’t turning to Florida’s Land Use and Environmental Dispute Resolution Act at §70.51, Florida Statutes.

To learn more about the Act please consider attending the May 8, 2009 presentation of Jon Mills and Sandra Upchurch at the 32nd Annual Local Government Law in Florida Seminar hosted by the City, County and Local Government Law Section of the Florida Bar.

Top 10 Ways to Botch Up a Mediation

2009-07-31T11:36:00.000-05:00

As mediation counsel at Upchurch Watson White and Max I obviously believe wholeheartedly in alternative dispute resolution and the stress that it takes off of the judicial system and the parties both financially and emotionally. There are still a few naysayers out there as Diane Levin points out in her March 4th blog. Although few and far between, some attorneys are openly hostile to the concept of ADR while others are a bit more passive in their disgust. Here are a few of the techniques my colleagues and I have encountered from those passive-aggressive practioners. And, yes, these really have happened.

1) Don’t prepare at all. You know the file, right? To prepare is just a waste of your client’s money.

2) Read the newspaper throughout your mediation. This will really give the opposing attorney the warm fuzzies as he is offering his opening remarks and set a pleasant tone for the rest of the day.

3) Be sure to blast the opposing party and their case during your opening statement. There is nothing better to create a sense a feeling of goodwill and cooperation.

4) Take a long lunch break out of the office. This will certainly break the rhythm of the day and short circuit whatever progress has been made.

5) Overinflate your client’s expectations regarding what their case is worth and encourage them to attach that value to something completely unrelated to the case such as a new house, erasing existing debt, etc…

6) Bring a party to the mediation with little to no authority to settle.

7) Loudly announce multiple times during the mediation that you and your client are preparing to declare impasse and leave for the day.

8) In a true showing of good faith begin the mediation by putting on the table the exact demand indicated in the complaint.

9) Don’t discuss the weaknesses of your case at all with your client. Your job is to tell them what they want to hear not that the wheels may fall off the bus at trial.

10) Come to the mediation covered in pet hair and proceed to brush it off your attire throughout the mediation for all to enjoy. (author’s note: I love all animals just not animal hair and just not in my office)

- Sandra C. Upchurch

High Fives to...

2009-07-30T10:23:00.000-05:00

A hearty “high five” to Deltona for adopting Volusia County’s first green building ordinance.

The ordinance does not mandate green standards but rather offers incentives to builders to use materials that conserve energy, the environment and water resources. Deltona has caught the first wave of this trend which is discussed by Jess A. Pinkerton, the author of The US Green Building Movement- Green Means Go.

Hopefully Volusia County itself and the other 15 municipalities within its boundaries will ride the tide not far behind.

- Sandra C. Upchurch

Pre-Suit Mediation: A Good Start at Governmental Cost Control

2009-07-29T12:56:00.000-05:00

Each and every day seems to bring more grim news about this nation’s economy. This means that each day state and local governments are under increasing pressure to control costs and tighten already taut budgets. Governmental entities can and should examine the out-of-pocket very real expenses associated with litigation to determine whether this typically unpredictable expense can be limited and controlled.

One option is pre-suit mediation. What better way to avoid the costs of discovery and to limit mounting attorney’s fees than to never file suit at all but rather resolve the case at or before its inception. And, the option of pre-suit mediation need not be left to Plaintiffs. Rather a suggestion of pre-suit mediation can and should be made by any potential party to a cause of action. We can pretend to bury our heads in the sand and act surprised when suit is filed against our clients but the reality is that we know when someone out there is disgruntled and contemplating suit. Why not seek a third party neutral’s assistance to suggest a pre-suit mediation before too much time, money and emotion are spent.

For more information about pre-suit mediation and how it can most effectively be used to control government costs, please read my article “A Call To Pre-Suit Mediation In These Worst of Times.”

- Sandra C. Upchurch

Will Freshening Up Main Street Help Clean Up Wall Street?

2009-07-28T11:23:00.000-05:00

In this world of sprawling communities, commercial plazas and vacant downtowns, Architect Magazine is timidly crossing its fingers, hoping that the newly-created Federal Office of Urban Affairs will breathe new life into the neglected urban core of communities across the country and maybe even right this country’s economic course.

Reporter Mimi Zeiger states that “the subprime mortgage bust reminds us that cities just can't support ever-more-attenuated subdivisions and strip malls.” President Obama believes “if you want a thriving suburban area, then you better have a thriving city. If you want a state as a whole to do well, then the metropolitan areas in that state have to do well. There is no separation. It is all linked together. We have to get past this notion that we can just leave the cities to rot, because your economy will rot."

The article encourages insfrastructure spending on downtown shopping areas, parks, green development and the like. Perhaps once our local streets and towns are gleaming some of that shine will rub off on Wall Street.

To learn more about the Office of Urban Affairs and one writer’s opinions regarding its potentials and pitfalls please see Neal Peirce’s article “Hope for Metro Regions in New White House Office?”

Mediation is in the air – mediation tips everywhere!!

2009-07-16T13:57:00.000-05:00

I am new at blogging and spend much of my time scanning the web for blog-worthy information on the topic of mediation. My goal is to get information out to litigators so that they have easy access to what is current and relevant in the field of mediation without having to attend time-consuming, often mind-numbing seminars on the topic.

What do I gain from this endeavor? As a mediator at the Upchurch Watson White and Max Mediation Group in Florida I selfishly love mediating cases in which both parties arrive at mediation at the top of their game with all of their mediation tactics and strategies sharpened to a fine point. I always find simply phenomenal stuff at Victoria Pynchon’s awe-inspiring blog, Negotiation Law Blog, and this time I was again not disappointed. In Pynchon’s recent blog Mediators’ Proposals: The Good, The Bad and the Ugly, which of course is informational and instructional in its own right, she refers to Ralph Williams’ Mediation Tips - Negotiation.

WOW!!! What a goldmine for litigators. His list offers one-stop shopping for mediation strategies, tactics, preparation, presentations, psychology, you name it. Williams’ list of tips is a must read for litigators and mediators alike and addresses subjects ranging from brackets and bluffing to reactive devaluation and rapport.

As a blogger it is nice to craft your own material and fancy yourself as an author of sorts but sometimes you need to bow to those who have mastered the craft. With these references to your material I bow to you Victoria Pynchon and Ralph Williams!

- Sandra C. Upchurch

Pre-Suit Mediation: Only a Mid-West Trend?

2009-07-15T07:51:00.000-05:00

The International Academy of Mediators recently reported that pre-suit mediation is more common in the mid-west. The Academy refers to a June 25, 2009 article at the Chicago Daily Law Bulletin and states that it is believed the increase in pre-suit mediation is due to the “economic climate” while others attribute it to the “natural result of court programs encouraging parties to mediate.”

As for Florida, and Volusia County in particular, it still appears that pre-suit mediation is the exception to the rule perhaps because parties do not feel they have negotiating leverage until suit is filed and some discovery is conducted. I cannot help but believe that pre-suit mediation is always worth a try – what do you have to lose?

- Sandra C. Upchurch

Words of Wisdom

2009-07-13T13:51:00.000-05:00

We have all read the articles discussing which words have been overused and should be banned from adult conversation for the foreseeable future. After the hurricanes of ’04 in Florida, Floridians voted to remove the term “hunker down” from the English language. Recently there has been talk of removing “bailout” from our vernacular. Now it looks like local governments too are jumping on the bandwagon.

The Local Government Association in Great Britain wants to add its two cents worth by adding such terms as "best practice,” “challenge,” “outsourced,” and many many more.

Looks like the public sector trend may be to return to simply calling a spade, a “spade.” As our lives and these times are complicated enough, I am “all in.”

-Sandra C. Upchurch

Mediators to Speak at Local Government Law Conference

2009-04-22T11:57:00.000-05:00

UWWM Government Affairs panelists, Dean Jon Mills and Sandra C. Upchurch, have been selected to present at The Florida Bar 32nd Annual Local Government Law in Florida conference being held May 8-9, 2009 at The Ritz Carlton Grande Lakes Resort in Orlando, Florida.

Dean Mills, former Dean of the Levin College of Law, University of Florida, and current Director of the UF Center for Governmental Responsibility; along with Sandra C. Upchurch, former Deputy City Attorney for Ormond Beach, Florida, will present “Utilization of Florida’s Governmental Conflict Resolution Act and Environmental Dispute Resolution Act” on Friday, May 8 from 2:30 PM – 3:15 PM.

The mission of the City, County & Local Government Law Section of the Florida Bar is, "To generally serve as an organization and resource within The Florida Bar for lawyers representing local government interests and also practicing in this field on behalf of private interests."

Dean Mills served as Founding Director of the Center for Governmental Responsibility at the University of Florida College of Law from 1973 - 80 and from 1988 to present and was Dean from 1999-2003. He was elected to the Legislature in 1980, serving as Speaker of the House from 1987 - 88. He brings a broad-based knowledge of constitutional and governmental law to our mediation panel.

Ms. Upchurch has provided general counsel services to state and local governments including contract and claims review, preparation of legislation and consent decree monitoring, and has handled contract, zoning, annexation, land use, employment, and law enforcement disputes. She is keenly aware of the concerns facing governmental entities once litigation is threatened or initiated and brings this knowledge to the table as she assists parties in resolving their governmental disputes in the most cost-effective manner possible.

Firm Announces Formation of Government Affairs Practice Group

2008-12-02T13:11:00.000-06:00

Upchurch Watson White & Max is pleased to announce the creation of a specialty group designed to facilitate negotiations with government agencies. The Government Affairs Practice Group will guide deliberations among public and private parties to find inexpensive, early solutions to complex problems, minimizing protracted administrative or court proceedings. Primary subject areas include land use and development, public education, aviation and transportation, labor and employment issues, matters related to law enforcement, and special magistrate activity through court appointment.

In addition to mediations, the group will offer consensus building workshops, conflict assessment consultation and advice, and special magistrate services, such as serving as a discovery master by court appointment with party consent in an ongoing case.

Chaired by the firm’s president, John J. Upchurch, the team includes Dean Jon Mills, former Dean of the Levin College of Law, University of Florida, and current Director of the UF Center for Governmental Responsibility; Rodney A. Max and Michael S. Orfinger, principals of the firm; Howard Marsee and McVay "Mac" Voght, senior panelists; and Sandra C. Upchurch, former Deputy City Attorney for Ormond Beach, Florida, an associate of the firm.

“We look forward with a great deal of enthusiasm to organizing the firm’s diverse body of experience to focus on providing a versatile and comprehensive suite of resolution services to our governmental and private clients,” said Upchurch. “There is a tremendous need for ways and means to reduce costs and expedite decision making in today’s challenging environment.”

Established in 1996, Upchurch Watson White & Max has offices in Central and South Florida, as well as in Birmingham, Alabama. The firm is a leader throughout the region in promoting mediation and other forms of ADR. Firm panelists serve as court-appointed and privately employed mediators, arbitrators, special masters and third-party neutral case managers, preside over private trials, and act as consultants to business and industry, designing in-house dispute resolution systems.

E-News from The Center for Governmental Responsibility

2008-10-09T12:21:00.000-05:00

Fall 2008, Volume II, Issue 1

For additional information regarding the Center for Governmental Responsibility, read online at: www.law.ufl.edu/cgr TO SUBSCRIBE: E-mail: Lkennedy@law.ufl.edu

Privacy: The Lost Right

CGR Director Jon Mills recently completed a new book. Mills’ book, entitled PRIVACY: THE LOST RIGHT, was published in August, 2008, by Oxford University Press. Mills cautions that the right of privacy is disappearing in todays society. He describes the evolution of legal theory of privacy and remedies to protect privacy. The book compares the evolution of those legal theories to the revolution in technologies, cultural habits, governmental policies, and economic incentives that support an intrusive society. PRIVACY: THE LOST RIGHT chronicles decreases in privacy caused by government, the modern press, data brokers and private individuals and by individuals general lack of understanding about todays intrusive world. He uses specific cases dealing with press, government, and citizen intrusion to provide a vivid context of harm caused. He also uses cases in which he was an attorney and provides insights on those cases and the actual impacts of intrusions. Ultimately, Mills concludes protections for privacy have failed and the vast majority of the public is under-informed about intrusions.

10th Anniversary of Poland Center

The Center for American Law Studies, a joint Polish-American program directed by CGR, celebrated its 10th anniversary in June with graduation ceremonies and a comparative law seminar featuring top UF law scholars. The Center is a joint program of UF law and Warsaw University in Poland. More than 1,100 upper level Polish law students have graduated from the certificate program, taught by UF faculty; and twenty-three of those students have completed UFs LLM program in comparative law. Center Director Ewa Gmurzynska organized the anniversary activities to commemorate the programs contribution to exchange programs, enrichment courses, internships abroad, and increased comparative law scholarship. Keynote speaker for the activities was Miami attorney and distinguished UF law alum Andrew C. Hall of Hall, Lamb & Hall, P.A.

Fred Levin Tours Poland

Center Distinguished Pensacola Attorney Fred Levin, namesake of the Levin College of Law, visited and toured the Center for American Law Studies at Warsaw University, hosted by Director Ewa Gmurzynska. Levin, accompanied by members of his family, met with the President of Warsaw University, Professor Malgorzata Chalasinka-Macukow, and with justices of the Polish Supreme Court.

A Call To Pre-suit Mediation In These “Worst of Times”

2008-10-02T15:43:00.000-05:00

By: Sandra C. Upchurch

The passage of Amendment 1 in January, 2008 sent most local governments scrambling to make significant budget cuts. Services are being reduced, staffing levels are being lowered and even routine purchases are being scrutinized just to name a few of the impacts. As local governments are required to turn the magnifying glass on themselves to make the numbers work, how litigation is handled should not be overlooked as a potentially significant cost-saving measure. Litigation is costly and unpredictable, two factors that are simply unacceptable post-Amendment 1.

One way to most effectively avoid the costs and unpredictability of litigation is to engage in pre-suit mediation. Often-times, pre-suit mediation is not considered because no party feels the pressure or anxiety which comes with a pending Motion for Summary Judgment, and no party feels threatened by a looming and ominous trial date. Although these external motivators for settling cases may not exist pre-suit there are an equal number of internal motivators which are often overlooked and warrant consideration when contemplating pre-suit mediation.

CUT COSTS

Money is the ultimate motivator, and pre-suit mediation simply makes good economic sense. “The earlier a case can be resolved, the greater the cost/benefit ratio for both sides.”1 Parties that have not engaged in the lengthy discovery process can consider using those unexpended funds toward resolving the case rather than engaging in discovery - perhaps allowing a pre-suit offer to be greater than what could be considered once litigation is commenced or a party to accept a lower offer because out-of-pocket expenditures are limited. Resources that would otherwise be used to conduct discovery, prepare for trial and try the case can be used instead to resolve the dispute. 2

REDUCE EMOTIONAL BAGGAGE

Emotions are probably the second most important motivator. Emotions often run high in litigation. This emotional factor can be significantly reduced, although not eliminated entirely, when parties agree to engage in pre-suit mediations. We have all participated in depositions with our client wincing beside us at every word the deponent is uttering. Those emotional flare-ups are certainly a natural result of hearing something which is unpleasant or distasteful. The sting of hearing the other party’s position does not usually fade with time and often leads a party to be less inclined to deal reasonably and rationally with the other party. Pre-suit mediation allows negotiations to occur before more emotional baggage gets piled on through the discovery process. Although the initial emotional impact has already occurred when the dispute arose, pre-suit mediation can reduce the amount of salt thrown in the wounds, which is often what the discovery process feels like. Pre-suit mediation can allow parties to negotiate without the posturing and resistance the discovery process can create.

SAVE TIME

Time is another factor. Litigation is a long, arduous process. Once parties have invested substantial amounts of time sitting through multiple attorney conferences and depositions and crafting responses to lengthy interrogatories and repeated requests to produce, their positions harden and their perceptions regarding the strength of their case becomes engrained and hardened. This is when expectations can soar and become unreasonable. And, it is why we occasionally encounter the attorney at mediation who needs the mediator to focus the clients on realistic resolution of the matter. At pre-suit mediation negotiations are initiated early enough that the parties’ resolve is often not solidified and openness to cooperation and compromise still exists.

Time is also a consideration because of the delay which comes with litigation. As court budgets are tightening, hearing times and trial dates are harder and harder to come by. Many clients are confused by the time it takes to resolve a case from the date of filing to Final Judgment. Pre-suit mediation allows parties to retain or regain control of their calendars.

PUBLIC RECORDS LAW AFFORDS EARLY DISCOVERY

Finally, some shy away from pre-suit mediation because of the perceived inability to prepare a case prior to initiating a lawsuit. However, in the government sector the discovery process need not await the filing of a lawsuit. Governmental entities in Florida are subject to Florida’s Public Records Law. The material which would be obtained through the discovery process can often be obtained pre-suit with public records requests.

THE BOTTOM LINE

The time is right to give pre-suit mediation a chance. Your governmental clients will appreciate the opportunity to resolve the matter early on and less expensively. Your individual clients will appreciate the opportunity to resolve the matter early on at little cost to them financially or emotionally. For all clients, pre-suit mediation gives them a much-needed measure of control, both in terms of time and resources. Pre-suit mediation, even if unsuccessful, is a useful pre-suit strategy to narrow issues and get a first glimpse of the other party’s case. 3

1. Clelland, Ted, “Pre-suit Mediation; Good Economics?,” May 13, 2008, adrted.com, accessed September 12, 2008, http://adrted.com/articles.htm.
2. Florida Mediation and Arbitration LLC, “Pre Suit Mediation,” floridamediator-arbitrator-umpire.com, accessed September 12, 2008, http://floridamediator-arbitrator-umpire.com/PreSuitMediation.html.
3. Id.