Written by: (Ret.) Judge Kenneth Stern
Published: March 2023

There is a key to resolving cases that should be central to your efforts.   Often, we have a client, or opposing party,  who is so immersed in resentment and anger because of the dispute in which s/he is involved,  that s/he is incapable of addressing the situation which is the focus of the dispute.   Or we have an opposing counsel who postures, instead of discussing the issues.

The most common problem with such situations is that the person unable to focus on the situation to be resolved is  preoccupied with the emotional perception that s/he has been, or might be, outfoxed by the opposition.   Such a situation cries out for you to dip into your bag of interpersonal tactics and heed my favorite definition of all time:  “Diplomacy is the art of letting the other person have your way.”  This begins with explaining that the person’s own self interest is being disserved by not concentrating on what s/he really needs, which is getting the situation to yield what s/he wants.       

If the problematic person is your client, you must pierce the emotional cocoon that your client has woven, by sympathizing with his or her feelings,   then to point out that s/he shares a situation with the opposing party which has to be sensibly resolved.    Help your client to realize that the best way to make the harsh feelings and resentments disappear is to recall the last time your client and the opposing party were dealing with one another in a civil, cooperative way.

Do what you can to bring the client’s focus to that period, and get him or her to acknowledge that they once were able to deal with one another for their mutual benefit.   Then, urge your client to recall what occurred to create the dispute that now exists.  Although it is likely that your client will seek to blame the deterioration of their relationship on the opposing party, point out that the client’s self interest would best be served by resolving the matter, not by prolonging the dispute.

Help your client to identify what actions and concessions by both sides would defuse the anger and resolve the situation.  Urge the client to focus on what should be asked of the opposing side to help resolve the dispute. This will help you to formulate your comments to the other party during the joint opening session, after the mediator concludes his or her remarks and invites the attorneys to describe to the other side how they see the case,  and how they suggest a settlement could be reached. [1]  

If your opposing counsel is a reasonable person interested in settling the case to his client’s satisfaction, you might, prior to the  mediation date, suggest a resolution based upon fostering in both clients the perception you and your client have achieved during your discussions.

If the stubborn person is the opposing party,  your tactics would be shaped by the nature of that party’s attorney.   If the attorney is plagued by the client’s obstinacy and is having difficulty getting the client to address the situation objectively,  you might tell the attorney (regardless of whether it is true) that you had the same problem with your client,  and that you  used with your client the same approach you are suggesting he or she use with his or her client.

Finally, there is the situation where the problematic person is your opposing counsel.  Once in a while, the attorney on the other side is a “hot dog,” whose modus operandi consists of arm waving, posturing, and threatening.   If you can, convince opposing counsel that his/her client will be well-served, and will appreciate the attorney’s work, if a satisfactory solution can be created to allow both parties to put this situation behind them,  and to get on with their lives.  If that doesn’t motivate him or her to foster a settlement, appeal to the attorney’s self interest: stress that a happy client will return with more business, but if the case languishes for months, with attorneys’ fees mounting, the client will not likely return with more business or recommend him to others.

If your efforts do not produce a conciliatory attitude, call the mediator and explain that there’s a problem that you would appreciate his/her addressing at the mediation.   Explain who’s the problem and what you would like the mediator to do, either in his opening statement (if there will be one), or in caucus.  An experienced mediator can do wonders.  (See article, “Recruiting the Mediator as Your Ally,” in the ADR Corner column in the  PBCBA Bulletin of April 2017.)

Since his retirement from the Circuit Court bench, Judge Stern has served as a Mediator in Circuit Civil, Family, appellate and federal cases.  He also serves as an Arbitrator (AAA approved), and as a Special Magistrate, helping to move cases toward resolution by hearing motions which have been languishing on crowded court dockets.   Judge Stern may be reached at kdstern@gmail.com or 561-901-4968.

“For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/.

[1]  When mediating a case, I strongly urge the attorneys to agree to such a joint session, wherein either attorney is urged to speak calmly and respectfully to the other party.  Such a joint session often helps to shorten the time needed for mediation, because it helps to identify the key issues that need to be addressed, and often defuses the anger the opposing parties so often feel toward one another.

Published: February 2023
Written by: Donna Greenspan Solomon

Arbitration Case Law Update

Morgan v. Sundance, Inc., 142 S.Ct. 1708 (2022).  Employee brought nationwide collective action asserting employer violated federal law regarding overtime payment.  Eight months later, employer moved to compel arbitration.  The district court denied the motion, and the Eighth Circuit reversed, finding that a waiver of the right to arbitration required a showing of prejudice.  The US Supreme Court vacated and remanded, holding that prejudice is not required to show that a party, by litigating too long, waived its right to compel arbitration under the Federal Arbitration Act (“FAA”). 

Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022).  The FAA preempts any state rule discriminating on its face against arbitration, for example, a law prohibiting outright the arbitration of a particular type of claim.

Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783 (2022).  Any class of workers directly involved in transporting goods across state or international borders falls within FAA’s exemption for contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.

Outokumpu Stainless USA, LLC v. Coverteam SAS, 17-10944, 2022 WL 2643936, at *3 (11th Cir. July 8, 2022).  On remand from the US Supreme Court, the Eleventh Circuit found that non-signatory to the arbitration agreement could nevertheless compel arbitration as a defined party covered by the arbitration clause.

 Attix v. Carrington Mortgage Services, LLC, 35 F.4th 1284 (11th Cir. 2022).  The Eleventh Circuit held that a borrower and mortgage servicer, through an express delegation clause, clearly and unmistakably agreed to submit questions of arbitrability to the arbitrator, stating:  “At the end of the day, the ‘arbitrability of arbitrability’ is simply about the freedom to decide who decides disputes. Federal law provides, emphatically, that parties may opt out of the judicial system. One would be hard-pressed to find a topic about which the Supreme Court has provided more consistent clarity in recent years than arbitration. The Court’s precedents make clear that, when an appeal presents a delegation agreement and a question of arbitrability, we stop. We do not pass go. At some point in this litigation, someone may, perhaps, collect $200. Whether anyone will—and who will ultimately decide whether anyone does—are not questions we answer today.”

 Perera v. Genovese, 345 So. 3d 882 (Fla. 4th DCA 2022).  Once a court determines that arbitrator exceeded his or her powers, the court’s decision to vacate the award either in whole or in part is a discretionary decision that turns on whether the arbitrator’s other rulings are intertwined with the arbitrator’s unauthorized ruling.

Navarro v. Varela, 345 So. 3d 365 (Fla. 3d DCA 2022).  The determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.  The trial court did not err in concluding that claims for intentional infliction of emotional distress and violations of the Florida Civil Rights Act were not arbitrable because they lacked a sufficient nexus to the parties’ agreement.

Malek v. Malek, 346 So. 3d 179 (Fla. 3d DCA 2022).  Arbitration agreement applicable to disputes between a company and its shareholders did not apply to dispute over ownership of the company in a dissolution action.

Addit, LLC v. Hengesbach, 341 So. 3d 362 (Fla. 2d DCA 2022).  Arbitration agreement contained on page 15 of 23-page assisted living residency agreement, which was neither set off nor made conspicuous in any manner, and where there was no opportunity for meaningful negotiation, was a contract of adhesion and was procedurally unconscionable; provision carving claims for eviction out of arbitration agreement was substantively unconscionable; as a matter of first impression, confidentiality provision of arbitration agreement was not substantively unconscionable; however, trial court erred in denying motion to compel arbitration where offending provisions were severable.

UniFirst Corp. v. Stronger Collision Ctr., LLC, 336 So. 3d 1283 (Fla. 3d DCA 2022). Under the rules of the American Arbitration Association (AAA) incorporated into arbitration provision,  plaintiff was entitled to proceed to ex parte arbitration under the AAA’s expedited rules, without seeking a court order compelling arbitration, after defendant chose not to participate in arbitration and did not reply to arbitration notices.

Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA (Commercial Panel) and FINRA arbitrations.  She is also a Certified Circuit, Appellate, and Family Mediator and Florida Supreme Court Qualified Arbitrator.  Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com.

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For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee.