Published: January 2023
Written by: Alfred A. LaSorte, Jr.

Harnessing Settlement Momentum for a Successful Mediation

Have you experienced a mediation which starts out like this – negative body language from all parties during the initial joint conference, and your clients privately expressing negative thoughts about the other side – about how greedy, untrustworthy, or sneaky they (and their counsel) are?  Then, after a few hours with little substantive progress, it seems like settlement has no chance.

Not an uncommon scenario.  Yet, many mediations that start this way still end up settling.  An interesting thing happens 3/4 of the way through.  Momentum shifts in both rooms from active resistance to active cooperation.  And after some more hard work on all sides, the case eventually settles.

An unpromising beginning morphs into a successful settlement. How, and why, does this happen?    Several factors can contribute to this momentum shift:

• Time in the room. Mediation is foreign processes to most. Parties can be nervous coming in, not knowing what to expect, and mistakenly thinking it’s smart to act tough. Spending time with their counsel in a conference room (or a Zoom virtual breakout room) can settle clients down and they start to loosen up.
• The mediator as the voice of reason. Lawyers who like their cases, and their clients, can end up “preaching to the choir” about the strength of cases, causing unrealistic optimism, in turn limiting the clients’ willingness to compromise. An effective mediator can often defuse this through some frank discussions with the parties, with them gradually realizing there are two sides to the story and their cases aren’t slam dunks. This often takes multiple discussions throughout the day before it sinks in.
• Seeing movement from the opposing party. Nobody wants to bid against themselves. And posturing and tough talk in initial sessions serve only to widen the gap between the two sides.  Minimal moves are usually met with equally minimal responsive moves, resulting in frustration on both sides.  But when one side eventually sees real movement from the other, it can loosen them up, helping move them from “we’ll see them in court” to “let’s see how favorable a number we can get them to.” 
• Humanizing the opposition. We often assume the worst motives in others, and the best in ourselves.  In mediation, this can mean seeing the opposition as evil, or greedy, or _________ (fill in any unflattering adjective).  Parties don’t see or hear what goes on in the other side’s room, or how their opponents act.  But the mediator does.  General reports from the mediator that the other side truly is making an effort can eventually help turn the tide.

How can you increase the chance of seeing this momentum shift at your next mediation?

            1) Start with realistic demands. My biggest mediation pet peeve is plaintiffs whose opening demands are higher than their “best day in court” number. (I hate when I hear “But we need to start with a cushion so we’ve got some room to move!”) The near-universal response to such a demand is a minimal defense counter. After a couple of hours, even with “reductions,” the plaintiff is still near their actual “best day in court”   number and the defense feels like it’s being played. The mediation goes south from there.

            My strongest advice to both sides is this – start with a compromise number.  Tell the other side it’s a compromise, and that you expect compromise from them as well.  You will save hours of wasted time and will send the “I’m reasonable” message the other side needs to hear in order to get reasonable themselves.

            2) Hang in there.  Often it takes a while for the “spirit of compromise” to reveal itself. Rather than encouraging your client to leave at the first hint the other side is being unreasonable, suggest they stick around, for at least another couple of rounds.  Mediation is not a one-hour process.  Give it time to work.

            3) Let the mediator help.  It can be hard for lawyers to defend the opposing parties’  motivations.  Clients want you to agree that the other side is just plain bad.  Use the mediator to defuse animosity and distrust.  When he or she does so, stay out of their way.  It’s frustrating as a mediator when a lawyer fights too hard and fires up their client, increasing the gulf between the two sides. The mediator is there to facilitate settlement.  Let them help you get there!

            4) Once you sense the momentum is shifting, go with it.  Talk to your client.  Encourage   them to go that extra step toward settlement.  (Your counterpart in the other room is  likely doing the same with his or her client at this point.)

And help them understand the true risks and costs of going forward with a trial – crucial info while weighing the relative benefits of a settlement proposal.  Whether to settle is of course the client’s call, not yours.  But make sure they have the tools necessary to make an informed decision. 

You can help make this momentum shift happen for your client.  Some cases do just need to be tried, and some mediations must fail.  But in the mediation room, when you sense momentum starting to build toward settlement, lean in and make it happen!

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

After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator and  expert witness through his own firm, Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com).  Mr. LaSorte can be reached at (561) 286-7994 and [email protected].

Published: December 2022
Written by: Lawrence Gordon 

Do You Think About Diversity Before Hiring a Mediator or Arbitrator?

I sincerely believe that the short answer is probably not. How can it be a fair process if neutrals of color are not involved in meaningful numbers? The pool of Mediators and Arbitrators should reflect the community’s racial, ethnic, and gender diversity. 

According to the 2020 Census, Florida has a population of twenty-one and a half million people. Seventeen percent of Florida’s population is African American. This means that Florida has approximately two million, eight hundred thousand African Americans living in the state. These numbers would lead one to think that there are over five hundred Florida Supreme Court Certified Circuit Civil African American mediators practicing in Florida, but nothing could be further from the truth.

In 2020, I published an article, in this column, about the lack of diversity among Circuit Civil Mediators in Florida, “ADR In Florida, the Severe Lack of Diversity.” In 2020 African Americans made up 3.8 percent of Certified Circuit Civil Mediators. This means that there were (122) one-hundred twenty-two African American mediators. Little has changed since that time. According to the Florida Dispute Resolution Center, the number has grown to 4.04 percent which translates to (127) one-hundred twenty-seven African American Circuit Civil Mediators.

Compounding the problem is the fact that a similar lack of diversity exists in the Florid Bar which oversees all the attorneys practicing law in Florida. There are approximately one hundred and ten thousand lawyers in Florida. Unfortunately, less than three thousand are African Americans.

This means that there is a better than even chance that an African American participating in mediation will be represented by a white attorney and have a white neutral presiding over the negotiations. Most people of color who are involved in the mediation process very seldom see anyone else who looks like them at the table. Fair representation and equal access are essential to an unbiased system of justice. One cannot win if one is not allowed in the game. How can we continue to justify having slightly more than two hundred mediators of color in all Certified categories?

Even an African American billionaire as prominent as JayZ must struggle with the issues surrounding the lack of diversity among mediators and arbitrators. In 2018 JayZ was involved in a 204-million-dollar arbitration. He noticed that there were very few African American arbitrators for him to select from. He complained to the Court which agreed that the lack of African American arbitrators was discriminatory under the Constitution of New York State. The Court ordered arbitrators of color to be included in the pool of neutral professionals.

Imagine that you are a plaintiff with a profoundly serious problem. Perhaps you are litigating a multimillion-dollar business dispute or have lost a body part or function in a serious auto accident. Your case has been ordered to mediation by the Court. As you sit there looking around the room of multiple attorney defendants and mediators, you soon become aware of the fact that you are the only African American in the room. Suddenly, your pulse quickens, and you are concerned. You think to yourself can I get treated fairly under these circumstances? This situation happens regularly. I have had several people of color describe this scenario to me. I usually get to meet them when the case is mediated a second time with me serving as a mediator of color. They appear to breathe a sigh of relief when they meet me at the second or third mediation. One must wonder, can fairness and equality prevail under the above-described conditions? Just the fact that one thinks about the lack of diversity, equity, and inclusion during the mediation skews the playing field. We are all creatures of the environments that we have been exposed to during our lifetime. We all have our biases and prejudices. I would argue that there is a real possibility that our biases and prejudices might become a factor when there is only one person of color involved in the mediation process. We as people often tend to migrate towards and assist those parties who look like us.

Simply put, diversity is the presence of differences within a given group or setting. A diverse group or organization is one in which a variety of social and cultural characteristics exist. After reading the definition on the Florida Bar website, I have a better understanding of the problem. It reads, “diversity has a dynamic meaning that changes as the demographics of Floridians change. Apart from differences in race, color, gender, and religion just to name a few. These differences are constantly in flux. Defining diversity on current differences would limit its application to future changes and likewise, restrict or limit the Bar’s consideration of and response to significant changes.” SPOKEN LIKE A TRUE LAWYER.

Lawyers aside, the problems caused by the lack of diversity are both systemic and institutional. Nothing will change until all stakeholders take bold steps to make diversity, equity, and inclusion a priority.

Lawrence Gordon is President of Phoenix Mediation, LLC. He is both a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Qualified Arbitrator. He is a member of the Florida Academy of Professional Mediators. He currently serves on the Florida Bar Board of Governors Advisory Committee. He is a former multi-term member of the Florida Bar Unauthorized Practice of Law Committee. He recently served on the Florida Bar Fifteenth Judicial Circuit Grievance Committee “D”. He previously served on the Board of Directors of the PBC Trial Lawyers Association (now known as the PBC Justice Association). He is currently serving his fifth term as Vice Mayor/Councilman in Haverhill, Florida. He currently serves as President of the PBC Caucus of Black Elected Officials and 2nd Vice President of the PBC League of Cities. He is a member of the Florida Bar and PBC Bar Association and serves on the ADR Committee as Municipal Liaison and on the Wrongful Death and Personal Injury Committees. He was a licensed Florida Adjuster for 35 years. He has published several articles in the area of Mediation/Alternative Dispute Resolution.