Guilène F. Theodore, Attorney-Mediator Collaborative Conflict Resolution, PLLC Kerry Raleigh, Attorney Walk Law Firm. P.A.

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1 Guilène F. Theodore, Attorney-Mediator Collaborative Conflict Resolution, PLLC Kerry Raleigh, Attorney Walk Law Firm. P.A. August 1, 2015 Co-Founders of the Florida Civil Collaborative Practice Group

2 Mediating Sunshine Entity Disputes Mediation: Confidentiality and Finality Sunshine Entities: Public Access and Collegial Decision- Making

3 OVERVIEW of FLORIDA S SUNSHINE LAWS Constitutional Provisions Statutory Provisions Interrelationship with Public Records Laws

4 CONSTITUTIONAL PROVISION MEETINGS WHERE OFFICIAL ACTS ARE TAKEN MUST BE OPEN AND NOTICED TO THE PUBLIC Fla. Const. art. I, 24(b): All meetings of the executive branch of state government or of a county, municipality, school district, or special district, where official acts are to be taken or public business of such body is to be transacted or discussed, must be open and noticed to the public.

5 STATUTORY PROVISION- F.S Codifies Constitutional Requirements/ provides exemptions and exceptions.. No resolution, rule, or formal action shall be binding if not taken or made at such meeting. The board or commission must provide reasonable notice of the meetings.

6 PUBLIC RECORDS LAW- CHAPTER 119 Provides broad access, and sets forth exemptions and exceptions

7 EXAMPLES OF ENTITIES COVERED BY SUNSHINE LAW Public Boards Single Member of Board with Delegated Authority Private Boards - with Delegated Authority

8 Sunshine Law Principles RESULTING TENSION Public Access to Governmental Decision- Making Confidentiality And Finality Principles of Mediation

9 HOW DO SUNSHINE ENTITIES PARTICIPATE IN MEDIATIONS? Impact of Case Law Impact of Statutory Provisions Impact of Florida Rules of Civil Procedure

10 MEDIATION INVOLVING SUNSHINE ENTITIES Case Law Development and Update News-Press Pub. Co. v. Lee County, 570 So. 2d 1325(Fla. 2nd DCA, 1990) Mediation not required to be open to public if no substantial delegation of legislative function.

11 MEDIATION INVOLVING SUNSHINE ENTITIES Case Law Development and Update Brown v. Denton, No. 1D , 2014 WL (Fla. 1st DCA, Oct 21, 2014) In federal court mediation proceedings, which are confidential under federal law: Government parties must disclose Sunshine Law obligations and seek a waiver of local federal rules to conduct open mediations.

12 ADAPTING MEDIATION FOR SUNSHINE ENTITIES Statutory Exemption Fla. Stat. Chapter 44: Oral and Written communications are confidential in Court-Ordered Mediation

13 ADAPTING MEDIATION FOR SUNSHINE ENTITIES FRCP, Rule 1.720(b) Representative of Sunshine public entity appears at mediation with full authority to negotiate on behalf of entity and to recommend settlement to decision-making body of entity.

14 Mediations That May Involve Sunshine Entities Sunshine Entities Are Parties in Mediations involving Various Types of Civil Disputes General Civil Matters: i.e. Torts, Breach of Contract Matters of Specialized Nature

15 Disputes of a Specialized Nature Involving Sunshine Entities Fla. Stat. Sec (10)(c) Local Government s challenge of Department of Community Affairs determination of noncompliance of plan amendment with other laws. Fla. Stat. Sec (4) Disputes involving government denial of landowner s request for landuse plan amendment.

16 Disputes of a Specialized Nature Involving Sunshine Entities Fla. Stat. Chapter 164 Fla. Stat. Sec Intergovernmental Mediation Mediation option under Florida s Administrative Procedures Act

17 Disputes of a Specialized Nature Involving Sunshine Entities Fla. Stat. Chapter 447 Fla. Stat. Sec Public Employees Collective Bargaining Attorney General s mediation program for disputes re: Public Records requests

18 CHALLENGES/BEST PRACTICES Challenges in mediating disputes involving Sunshine Entities Best Practices for mediating disputes involving Sunshine Entities

19 CHALLENGES- Pre-Suit Mediation In Pre-Suit Mediations (not court-ordered) - Documents exchanged are subject to public records request Parties may enter into Confidentiality Agreement but may not provide that documents exchanged in the mediation will be confidential - (Can only be by statute)

20 CHALLENGES - Pre-Suit or Court-Ordered Mediation Settlement is not finally concluded at the end of the mediation session Collegial Body sends representative with authority to negotiate and recommend settlement If tentative agreement is reached, Representative takes agreement to Collegial Body for final approval at Open meeting Shade meeting can take place to discuss settlement prior to open meeting where board takes action

21 CHALLENGES - Pre-Suit or Court-Ordered Mediation SUNSHINE ENTITY (not the mediator) is responsible for releasing Public Records As mediator, wait for a court order requiring release to third party of any public records. Address issues of indemnification in Mediation Agreement.

22 CHALLENGES - Pre-Suit or Court-Ordered Mediation Keen interest by press in disputes involving Sunshine Entities. Communications with the Press must be managed and parties may need to (negotiate) and agree on how they will communicate with the Press, including frequency and timing of press reports

23 CHALLENGES Multiple decisionmakers and Often, hidden players. Consider the role of hidden players in the decision-making process (i.e. fiscal/budget officers, risk/claims managers, and clerks of court)

24 BEST PRACTICES for Dealing with Hidden Players and Political Pressure Points Hold a Pre-Mediation Conference Identify internal dynamics and issues Identify political pressure points at play, e.g., timing of elections Establish consensus on handling Press Establish ground rules Evaluate options for structure of mediation

25 Best Practices for Addressing Lack of Finality The Mediation Conference is completed But it is not over yet! Helpful Tools for Addressing Lack of Finality: Have parties establish when the collegial body will meet to vote on settlement agreement Be willing to meet with the Collegial Body if the government counsel believes that might help solidify the settlement

26 CHALLENGES/BEST PRACTICES Mediator may be called upon to meet with Collegial Body outside confines of mediation conference. If called upon to perform this role: Obtain adequate consents or necessary waivers of privilege Be aware of limitations against polling individual board members

27 EVALUATING OPTIONS FOR STRUCTURE OF MEDIATION Traditional Mediation Options with varying degrees of involvement by Public Collaborative Approach

28 BENEFITS OF PUBLIC INVOLVEMENT IN MEDIATIONS INVOLVING SUNSHINE ENTITIES Manages the Press Neutralizes negative influence of hidden players Makes it easier for Elected Officials to accept the settlement

29 IS MEDIATION APPROPRIATE FOR COLLABORATIVE APPROACH Comparison of Traditional Mediation to Mediation within Collaborative Law framework Types of Disputes/situations appropriate for Collaborative Law framework

30 WHAT IS THE COLLABORATIVE APPROACH? Four Defining Principles (1) Clients and attorneys agree in advance that if the matter does not settle, attorneys will not take any contested issue to court. (2) The process is transparent. Everyone agrees to an informal exchange of all relevant information. (3) Agreements are made through a process of interest based negotiation, where everyone involved is asked to find creative solutions that work for the parties. (4) Everything is confidential from day 1 of the Collaborative Process. What happens in Collaborative Law Process stays in the Collaborative Law Process.

31 MEDIATORS & COLLABORATIVE LAW PROCESS Collaborative Facilitator Part of the Collaborative Team Mediator Conducts Mediation within Collaborative Process

32 Comparing Traditional Mediation to Collaborative Law framework Mediation Mediation If Post-Suit: within an adversarial litigation Collaborative Law Non-Adversarial Setting

33 Eminent Domain/Quiet Title Inverse Condemnation Civil Rights Actions DISPUTES INVOLVING SUNSHINE ENTITIES APPROPRIATE FOR COLLABORATIVE LAW APPROACH Labor & Employment Tort Claims Land Use, Environmental ANY OTHERS?

34 ADDITIONAL ISSUES/BEST PRACTICES WHEN MEDIATING WITH SUNSHINE ENTITIES WITHIN THE COLLABORATIVE LAW FRAMEWORK The Participation Agreement Multiple Decision-Makers - Different personalities and views on collaboration Need for Legislative Authority?

35 What if? Avoid Traps for the unwary. What would you do in these situations? What if Government counsel asks you to attend a Shade meeting to brief the Collegial Board? One of the parties suggests that each party submit confidential mediation summaries? And/or additional scenarios?

36 QUESTIONS - and ANSWERS WHAT QUESTIONS DO YOU HAVE?

37 Guilène F. Theodore, Attorney-Mediator Collaborative Conflict Resolution, PLLC Kerry Raleigh, Attorney The Walk Law Firm, P.A Walklawfirm.com

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