Calm, Control, and Common Sense: How Mindful Meditation Can Lead to Mindful Mediation
February 2020
By: Adam Myron
I am going to ask you to do something counterintuitive: when you get to the end of this paragraph, stop reading and close your eyes. Slowly take three deep breaths, inhaling fully and exhaling fully. Then resume a normal breathing pattern and with each breath, count upward until you reach the number 10. If you start thinking of work, or what you’re going to have for lunch, or something else, that’s fine; notice the thought for what it is, but try to return your focus to your breath and resume counting. Once you have completed this exercise, return to this article. Are you ready? Get set. Go.
…
Now take a moment to explore how you feel after engaging in that exercise (which is just one of many ways to engage in mindfulness meditation). Studies show that regular practice can help reduce stress, regulate emotions, and increase awareness and self-control, and I suspect that you feel calmer and more focused than you felt a few moments ago. I am convinced that the physical, psychological, and emotional benefits of mindfulness meditation can lead to better outcomes at mediation.
In mediation, there are typically four kinds of participants: parties to a dispute, legal advocates, insurance claim representatives, and mediators. As human beings, they bring to mediation their own perspectives, biases, and emotions. For the parties on each side, passion frequently runs high, compassion frequently runs low, and judgment is easily clouded by ego, perceived past slights, and the general stress associated with being in an adversarial proceeding. Enter the mediator, whose job it is to impartially facilitate the conflict resolution process.
Under such circumstances, how can everyone increase the likelihood of finding common ground? By trying to remove the impediments to clear thinking: ego, indignity, and stress. And what is the easiest way to achieve that end? By seeking the benefits of mindfulness: increased awareness and self-control, regulated emotions, and reduced stress.
To those who are unfamiliar with mindfulness, this may seem hard to believe. But to regular practitioners, the correlation between mindful meditation and mindful mediation should be obvious because the primary effects of mindfulness – reflective thinking, controlled emotion, the engagement of higher thought processes, and consideration of outside perspectives – are essential to rational negotiation.
Indeed, few things are better for settling differences than understanding other people’s thoughts, feelings, and perspectives. It has been suggested that a successful mediation occurs when each side walks away equally unhappy. I do not subscribe to that theory. Instead, I believe that mediation participants can take positive steps to repair broken relationships and find common ground. I also believe that through mindful mediation, where the participants are calm and controlled and use common sense, subtle shifts in perspective can transform zero-sum game negotiations into opportunities for mutual gain.
As an illustration, imagine that two children are arguing over an orange. The first child claims she should have the orange because she was the one who found it. The second child argues that the orange should be his – after all, it was his idea to play outside, and if he hadn’t made that suggestion, the first child wouldn’t have found the orange. The first child can’t believe that the second child isn’t familiar with the age-old principle of “finders keepers”; the second child can’t understand why the first is so self-righteous.
The children finally decide that the only fair way to resolve their differences is to split the orange in half between them. Before they do, though, a mindful mediator intervenes. The mediator asks the children to explain why they want the orange, thus seeking an understanding of each child’s values. The first child says she is hungry. The second child explains that he needs the orange to bake a cake.
By this point, the mindful mediator will have ratcheted down the tension and injected into the situation a sense of calmness and structure – necessary elements for rational thinking. Understanding the children’s values, the mediator then asks if their goals could be achieved by peeling the orange, giving the first child the entire fruit to eat, and giving the second child the entire rind to use for the cake. Seeing the opportunity for each of them to walk away with a better outcome than if they had split the orange in half, the children decide to settle on those terms. Moreover, because each child does not feel that anything was sacrificed for the other’s gain, their long-term relationship does not suffer.
Though obviously less complex than some high stakes negotiations, this story teaches an important lesson for any negotiation: slowing down, keeping a cool head, and taking emotions out of high pressure situations can lead to better outcomes for the parties. In that way, achieving the benefits of mindful meditation can lead to more mindful mediation.
Adam Myron is an attorney with the law firm of Day Pitney LLP, where he focuses on complex commercial and business litigation, trust and estate litigation, and professional liability litigation. Adam is also a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator. You can email him at [email protected].
For additional ADR tips and resources go to http://www.palmbeachbar.org//adr-2.
PBC JUDGE EDWARD ARTAU APPOINTED TO APPEALS BENCH
Judge Edward Artau, who was appointed to the circuit bench by Gov. Rick Scott in 2014, on Wednesday was elevated to the appellate court by Republican Gov. Ron DeSantis.
For more information, please view the following article available from the Palm Beach Post by clicking here.
DEADLINE EXTENDED TO APPLY FOR – FLORIDA LEGAL SERVICES, INC. BOARD OF DIRECTORS VACANCY
Florida Legal Services, Inc. Board of Directors: One lawyer to serve a three-year term commencing July 1, 2020. This 15-member board provides judicial advocacy through co-counseling with local program attorneys and volunteer pro bono attorneys and provides legislative and administrative advocacy on policies impacting the legal rights of the poor, as well as providing civil legal assistance to indigent persons who would not otherwise have the means to obtain a lawyer.
Persons interested in applying for these vacancies may click here to download the Application for Special Appointment or should call Bar headquarters at (850) 561-5757, to obtain the application form. Completed applications must be received by the Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida, 32399-2300 no later than the close of business on Friday, June 26, 2020. Resumes will not be accepted in lieu of the required application. The Board of Governors will review all applications and may request telephone or personal interviews.
CHIEF JUSTICE CANADY EXTENDS SUSPENSION OF JURY TRIALS TO JULY 17
Chief Justice Charles Canady issued new guidelines for state courts June 8. The first amended order extends the current suspension of the statewide grand jury investigating school violence through July 26 and other jury proceedings including other grand juries, jury selection, and criminal and civil jury trials through July 17. The second amended order requires trial-court circuits participating in the remote civil jury pilot program to report findings and recommendations by Oct. 2.
For more information, please click the following link: CHIEF JUSTICE CANADY EXTENDS SUSPENSION OF JURY TRIALS TO JULY 17
The Florida Bar | Article | June 09, 2020
JUNE BULLETIN – PERSONAL INJURY CORNER ARTICLE CORRECTION | HOSPITAL’S NON-DELEGABLE DUTY
June 2020 Bulletin: Please note the language and formatting of the Personal Injury Corner article on page 13 was not properly edited before printing at no fault of the author.
Please see the corrected article included below:
Page: Personal Injury Corner (Page 13)
Article Title: Hospital’s Non-Delegable Duty
Author: Ted Babbitt
Originally Printed: 6/1/2020 | Edited: 6/10/2020
HOSPITAL’S NON-DELEGABLE DUTY
Andre v. Abreu, 272 So.3d 467, (Fla. 3d DCA 2019) raised the question of whether a hospital owes a non-delegable duty to a patient as a result of actions of the independent contractor physicians working in the hospital’s emergency department. Ordinarily, independent contractors working in a hospital do not subject a hospital to liability for their actions. Pub. Health Tr. of Dade County v. Valcin, 507 So.2d 596,601 (Fla. 1987). However, in Wax v. Tenet Health System Hospitals, Inc., 955 So.2d 1, 9 (Fla. 4th DCA 2007), on the basis of the statutory responsibility set forth in Florida Statute §395.1055(1)(a) and (d), which requires Florida’s Agency for Healthcare Administration to establish rules for safe patient care imposed a duty on a hospital to provide safe anesthesia services consistent with those standards. The Fourth District concluded that there was a non-delegable duty to provide safe anesthesia services.
The Third District, in Tabraue, III v. Doctors Hospital, 272 So.3d 468 (Fla. 3d DCA 2019), concluded that a hospital did not owe a non-delegable duty for actions of emergency room physicians under the same theory espoused in Wax v. Tenet, supra. The Third District refused to follow the Fourth District’s holding in Irving v. Doctors Hospital of Lake Worth, 415 So.2d 55 (Fla. 4th DCA 1982), which overturned a verdict in favor of a hospital because of the failure of the lower court to give a ju1y instruction “that one may not escape his contractual liability by delegating performance under contract to an independent contractor”. In Newbold-Ferguson v. Amisub, 85 So.3d 502 (Fla. 4th DCA 2012), the Fourth District, at 504, held:
“Irving establishes that a hospital which provides emergency room services has a non-delegable duty to provide competent emergency treatment based upon an implied contract. It is therefore clear that the plaintiff could have pleaded a claim against the hospital for the emergency room doctor’s negligence on a non-delegable duty theory. The imposition of a non-delegable duty to provide competent emergency room services makes sense, because a patient in an emergency room generally has little, if any, control over who will be the treating physician.”
The Tabraue Court refused to follow Irving even though it recognized that Irving and the cases following Irving created a judicially imposed implied contract requiring hospitals to provide emergency physicians who gave non-negligent emergency room care subjecting the hospital to responsibility for the negligence of its emergency room physicians.
The Third District stated, at 812:
“While we recognize that Chapter 395 of the Florida Statutes obligates Florida hospitals to provide emergency room services to the public, we note that the statutory scheme is silent on the matter of non-delegable duty. We believe that expanding Florida hospital liability to include liability for those emergency room medical providers who are hired by hospitals as independent contractors is a public policy decision that is within the purview of Florida’s legislative branch. Or, to the extent the issue is one of common law, it calls for a Florida Supreme Court decision. We simply are averse to expanding, by judicial dictate, the liability of Florida hospitals, as the Estate urges.
Accordingly, we affirm the Trial Court’s dismissal of Count V of the Estate’s second Amended complaint and we certify conflict with Irving v. Doctors Hospital of Lake Worth, Inc. and Newbold Ferguson v. Amisub.”
Thus, the Supreme Court will have the final word as to the liability of hospitals for physicians, both in the anesthesia and emergency departments, as a result of the certification of that issue in the Tabraue case.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500.
ADMIN ORDER 12.511-5/2020.3 – RESTRICTING CERTAIN VISITORS TO THE COURTHOUSE – VACATING
Please click here to view the AO.
AMENDED AO 12.510-5/2020.11 MITIGATING MEASURES IN RESPONSE TO COVID-19
Please click here to view the AO.
15TH CIRCUIT JUDICIAL NOMINATING COMMISSION CERTIFICATION OF NOMINEES
FOR IMMEDIATE RELEASE
May 22, 2020
CONTACT: Robert J. Harvey, Esq.
Fifteenth Circuit Judicial Nominating Commission
TELEPHONE: (561) 303-2918
15TH CIRCUIT JUDICIAL NOMINATING COMMISSION
CERTIFICATION OF NOMINEES
The Fifteenth Circuit Judicial Nominating Commission (“JNC”) takes pleasure in certifying the following nominees to fill the vacancy for a Circuit Court Judge position created by the resignation of Judge Jessica Ticktin, pursuant to the Governor’s Letter to Convene dated April 10, 2020:
- Judge Paige Gillman
- Judge Bradley Harper
- Laura Laurie
- Judith Levine
- John Parnofiello
- Schnelle Tonge
A list of members of the Fifteenth Circuit JNC is available at https://www.flgov.com/judicial-and-judicial-nominating-commission-information/.
If you have any questions, please call Mr. Harvey at (561) 303-2918, or email at [email protected]
AOSC20-23 AMENDMENT 2 COMPREHENSIVE COVID-19 EMERGENCY MEASURES
Please click here to view the AO.
FLORIDA’S CHIEF JUSTICE ISSUES NEW PANDEMIC ORDERS LAUNCHING A REMOTE CIVIL JURY TRIAL PILOT PROGRAM, SETTING NEW HEALTH SAFETY MEASURES, & AMENDING PRIOR EMERGENCY ORDERS
TALLAHASSEE – Florida’s Chief Justice Charles Canady issued an order late on May 21, 2020, creating a new pilot program for civil jury trials to be held using remote technology. It will explore ways to let one of the most central parts of the state justice system – jury trials – begin again using health-related distancing during the coronavirus pandemic.
All jury trials in Florida have been halted, and a backlog has developed, since March 13, 2020. This occurred because of the danger of spreading coronavirus in the close quarters used in standard jury procedures. Florida has relied on an in-person jury system for 175 years since it achieved statehood in 1845. Jury trials are required by both the federal and state constitutions in certain instances.
Under the pilot program, the statewide COVID-19 Workgroup will develop requirements and will select up to five Florida trial circuits to participate in the pilot. At this point, trials will only be civil, non-criminal cases and all parties must consent to participate in the pilot.
In other actions last night, Canady also took the following measures:
- Issued a separate new order establishing health & safety precautions to be used in Phase 2 of the expansion of court operations. These precautions are based on a report issued by a statewide advisory COVID-19 Workgroup.
- Amended an earlier order called SCAO20-23 that provides comprehensive emergency procedures for use in courts in the pandemic. The amendments incorporate the new Phase 2 safety procedures contained in the COVID-19 Workgroup report.
Phase 2 is the time when limited in-person contact will be authorized in courts and court proceedings, but protective measures still will be required. It will be followed by Phase 3, when in-person contact is more broadly authorized, and Phase 4, when coronavirus no longer presents a significant risk.
Transition to Phase 2 in the Florida state courts will occur when each trial and appeals court has:
- Met five benchmark criteria: (a) no COVID-19 cases in the courthouse within 14 days or the use of deep cleaning if such cases have occurred; (b) local and state restrictive orders permit the activity; (c) the community shows at least 14 days of improvements in case reporting; (d) adequate testing programs are in place; and (e) other building occupants and justice system partners have been consulted.
- Developed an operational plan addressing implementation of the COVID-19 Workgroup’s report. The plan must be updated regularly to reflect advancements in best practices.
Florida’s State Courts currently are in Phase 1, the time when the most restrictive limits are placed on in-person contact to avoid possible coronavirus infections.
The Chief Justice will review these and other COVID-19 orders as the pandemic emergency develops and will modify or extend them if needed.
Statewide and local court emergency orders and advisories are available on the Florida Supreme Court’s website: https://www.floridasupremecourt.org/Emergency