HomeMy WebLinkAbout1992 11 04 Letter Re: Proposed Interlocal Agreement on Mediation (2)
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STE.."1STROM. McINTOSH. JtJLl:AN, COLBERT. 'WHIGllAM & SIMMOl\"S. P.A.
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November 4, 1992
Mr. A.R. "Doc" Yore
CITY OF LAK! MARY
Post Ottice Box 950700
Lake M~ry, Florida 32795-0700
Rei Propo..d Interlacel Agreement on Mediot1on
Dear Mr. Yore:
I have finally obtained And reviewed.. copy of what I be11.ve the
draft of the Interlocal Agreoment on Mediation to be cu..cuI.ed at
this evening' 8 CALHO m.eting a. requ.sted by you throu~h Carol
o Edwards. My ob.ervation. arG 4S follow,.
1. The firat WHEREAS .hould be deleted w1th regard to IU\y
reference a. to Chapter 164, 230, 166 and Chapter 125. If the
agreementi. truly an interlocal agr....nt,th. .01. atatutory
authority fo~ 8uch agreement 18 found 1n Chapt.r 163.
The fourth WHEREAS 8hould be deleted. I would not think that
it i8 ap~ropr1at. to formally aCknowledge that Chapter 164 .1.
inadequate. I do not believe that Chapter 164 1s .1n fact
inadequate nor do I believe that the function of Chapter 164
i8 to resolve the disputes prior to litlq_tlon a. oppo.ed to
requiring Qovernmental Agencies to discus. di.put... 1n an
effort to see that they may be settled prior to litigation.
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2.
iWlth regard to Section 3(.), I believe that the payment and
attorney'. tees and co.t. 1. An inappropriate an unacceptable
penalty to be .vok~ again.t . party whieh taIls to comply
with the require_nee ot the agr....nt.. I believe that
Section 3 (b) WOUld be adequate .a lon; a8 the .anction of
dismissal 18 deleted. r be11evethat en appropriate act.ion
would be abatement of lItigation until compliance haB been
aChieved.
FROM 4078316114
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i1 believe that section 4 puts the cart before the horae. I do
not believe that Ie the reeponslbility Of employed executives
of qovernmontal entit1es to determine when litigation should
be commencvd but only to recommend litIgation to. the qoverning
body. At that time the governing bOdy can make a decision a.
to whether the exception .et forth in Section2(a) is
applicable or whether it desire. to evoke the agreement. The
deciSion to Qvoke the agreement should be a deci.ion made by
the elected public officials and not employed administrative
officers. I would therefore delete a majority of Section 4.
I would amend 4(b) to say simply thAt this agreement shall be
evoked by the q~vernlnq body of each signatory hereto.
Section 5 seems reasonable. I think it is a good objective to
provide a forum for discussion betw.en the etaffs of the
v~riou. entities involved in a dispute prior to litiq4t1on
even though those staff, may have been involved in extensive
prior di8c\,\8s1one. I believe however, that Section 5 and?
should be merged because in essence 4 facilitator i. a
mediator and fac11itatore/madiators generally charge 1n the
range of $1250.00 to $150.00 per hour for their service..
Essentially I believe that Section 7 duplicates Section 5. If
7 1e merged into ! then Section 6 i. aeeeptable. I further
believe that any mediation Ihould be oonducted in accordance
with the Rules of Procedure as pre.cribed by the Supre.. Court
of Florida. If tho.. rul.. are adopted then ....ntially the
time frame set forth in 5 and 7 can be deleted with the
exception of the initial time fram.e. for the start of the
process after a party soeles to evoke the agreement.
6. I would restructure Section 8. Certainly, if the mediation
resul ts in a proposal that thG staffs of each entity are
prepared to pre.ent to their resp.cted body then there will be
an opportunity tor the elected otflc:.1als to eon.icier the
prop08ed .ettlement agreement, debete it, modify it, .te.
That process by itl very natur. will result 1n communication.
b.tween the t.wo govern1n; bodle. and may wellre8ult in a
joint me.ting.
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4.
As proposed, I believe the interlocel agreement contains many
redundancies, extre.ely cUmbersome, and i8 not calculated to bring
iSBue. to a speedy reeolution or alternatively to litlqation if
neeessary. One must remember that before di.pute. reach a level
where a interlocal agr..ment should be applicable there will have
been many diSCUSSions back and forth between the administrative
staffs of the entities and even the entities theme.lv.8. For that
reason, the mediation process should be fairly t1me constraIned and
task efficiant. The whole theory of mediation. is to provide 8
mechaniSM for partie. to quickly, efficiently, and economically
re.801ve disputes in a non-judicial forum. Although I belleve the
concept presented by the CALHO Agreement is 4 qood concept, a. I am
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FROM 4078316114
12-01-92 12:30 PM
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an ardent !Supporter of the mediation process, I do not bel lev. that
a8 framed it 1s quick, efficient, or inexpensive.
Sincerely yours,
STENSTROM, McINTOSH, JULIAN,
WHIGHAM' SIMMONS, P.A.
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FROM 4078316114
12-01-92 12:30 PM
PIS