October 2020
By: Theodore A. Deckert, Esq.

I am again honored to write the ADR Corner article for October.  October is special to me because it is recognized worldwide as “Conflict Resolution Month”, the third Thursday (15^th) is “Conflict Resolution Day” and the third week (11-17^th) is designated by the American Bar Association as Mediation Week.

I first want to highlight our ADR Committee’s activities promoting ADR in our community.  Covid 19 has made this October very different.  As I write in August I don’t know what our world will be like when you read in October.  I do know the ABA Theme for Mediation Week this year is “Mediation and its role in expanding access to justice during and after a pandemic.”  The Committee had to cancel our school essay contest. We are still planning a noon seminar “virtually” on October 15^th, with Elder Mediation the topic and Alice Reiter Feld, a recognized advocate for seniors and their families, the speaker.  The Committee has again arranged for Mediation Week proclamations by the County Commission, School Board, and many municipalities. For more about the work of our ADR committee throughout the year, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee.

Two years ago the ABA declared the 2018 Mediation Week theme as “Mediation, Civil Discourse, and ABA 2011 Resolution 108”.  It reminded us then of our responsibility as lawyers to address the toxic environment of political and social discourse in our country which has only continued to deteriorate over the last decade.  Because of the Pandemic and other events this spring, the consequences of political divisiveness and long standing racial and economic disparities in our country can no longer be ignored.

Crisis presents opportunity.  So many protests nationwide compel us to look more closely at the issues and strive to better understand how “others” live in our country. Personally, I found our Bar Association’s “21 Day Racial Equity Habit Building Challenge” online summer program eye-opening. I urge anyone who has not done it to go to      https://www.palmbeachbar.org/21-day-racial-equity-habit-building-challenge  and do so. I was saddened and embarrassed to learn the many ways our legal system has been used to preserve privilege for some and oppress others.  The ABA Mediation Week theme this year is a recognition of our responsibility as lawyers to address the disparities in our justice systems. With this in mind, I offer my personal thoughts.

Our country was founded upon a declaration “… that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  The founders declared that that government should “secure these rights” for ALL to “effect their Safety and Happiness.” (Excerpts from The Declaration of Independence)

The confluence of a Pandemic, economic and political systems that have caused a wide disparity between the “haves” and “have-nots” and a partisan system of government no longer able to govern for the “Safety and Happiness” of ALL it’s people has vividly demonstrated that our country is far from achieving that goal.  I personally feel we are at a major “tipping point” for whether or not it will ever be achieved in our country.

In my opinion, our legal system has contributed to this crisis by failing to be the “check” our founders intended in our form of democracy.  Just as our system too slowly recognized that the rights stated in the Declaration are not limited solely to “men,” our legal system has unfortunately been complicit in perpetuating and increasing the disparities among the lives of Americans.  See the “21 Day Challenge” for specific examples.

I hope as lawyers we can be better leaders and get our country back on course. We must promote and elect political leaders who understand their job is to govern for the “Safety and Happiness” of ALL people, regardless of color, origin, gender or any of the other “differences” that make each of us unique.  We must remember the “Rule of Law” is to ensure a just and fair society, not a tool of control and oppression, and be more mindful of our duty to society as well as to our clients.  We must find ways to overcome how technology has corrupted rather than enhanced communication and discourse and enabled the election of people who lack the values and abilities necessary to do the difficult job of governing for ALL people in today’s world.

I urge everyone who reads this to do several simple things. First, do The 21 Day Challenge if you have not already done so. Most importantly, VOTE IN PERSON and VOTE EARLY. Encourage and help others to do so also and help good qualified leaders get elected. If our country is to achieve the noble goal of our founders, we must elect leaders who have demonstrated the values and abilities they need to lead us to achieving that goal.

I believe our country’s GREATNESS is not measured by its stock prices, GNP or wealth.  It is measured by the “Safety and Happiness” of ALL its people.  Unless lawyers and judges do our part better, I fear our country will not achieve TRUE GREATNESS. I hope it will.

Theodore A. Deckert, Esq. is a Past Chair of the Palm Beach County Bar Association ADR Committee and a Past President of The Florida Academy of Professional Mediators. He has been a Florida Supreme Court Certified Circuit Civil & Family Mediator since 2000 and he has been a full time Mediator and Third Party Neutral affiliated with Matrix Mediation LLC since 2008.  Prior to becoming a full time mediator, he was a civil trial attorney since 1976 and a Florida Bar Board Certified Civil Trial Lawyer for 25 years.  He has helped thousands of people resolve virtually every type of civil dispute.  For more information email him at [email protected]  or go to www.matrixmediation.com

September 2020
By: Nick Marzuk

Alternative Dispute Resolution: Why it’s Better than the Alternative of Trial

As a law student, I was under the impression that mediation and arbitration were either uncommon or part of a small niche of the law – something I would rarely use, if ever.  Then as a practitioner and trial lawyer, the value of these practices became clearer to me. Now, as a mediator, I see how great they are for everyone involved.

Use Them Early and Often

Parties to a dispute/lawsuit will spend thousands of dollars on experts, exhibits, and attorneys’ fees to find out what their case is about and posture their position. A lot of those expenses are building the case for trial.  Yes, due diligence is important, and using mediation or arbitration without knowing anything about one’s case is not a good idea for anyone, but spending a fraction of that money early on can provide many advantages to both sides, or even bring finality to the case.

More and more contracts are adding pre-suit requirements of mediation or arbitration, making litigation the alternative.  Benefits of early mediation or non-binding arbitration include (1) seeing what the opposing side’s theory of the case is, (2) knowing how the opposing side values the case, and (3) for arbitration, seeing how a deciding body would rule on the dispute.  If the case does not resolve, these pieces of information are very helpful for both sides moving forward and will likely save both parties in costs/fees in the long run.  Lastly, an “unsuccessful” mediation or non-binding arbitration often leads to a subsequent resolution due to what transpired in those attempts.

What’s the downside of an early attempt at dispute resolution? At mediation, as well as many arbitrations, everything in confidential.  The cost is small compared to other litigation costs.  Lastly, putting the outcome of the dispute into the hands of the parties makes the result something both parties can agree to, unlike a verdict.

Most cases resolve pre-suit, and most lawsuits resolve before a verdict. Sure, there are some cases that are destined to go to trial, but even those cases are mandated to mediate before trial (if litigating here in Florida). Using dispute resolution early and often can streamline litigation, ultimately result in an early resolution, and be in the best economic interest of both parties.

Uncertainty of Trial

An honest trial lawyer will tell you they’ve won cases they should have lost, and they’ve lost cases they should have won.  Our judicial system is designed to optimize the chances of the fairest decisions/outcomes.  With our system though, verdicts usually result in clear cut winners and losers. Trials should be the last resort – and they are in Florida – but mediation is too often seen by litigants as a required impasse needed before trial.

When someone is wronged and wants “their day in court,” they’re usually leaving the outcome of something very significant in their lives up to a jury.  Six strangers, all summoned to jury duty simply because they have a driver’s license, decide cases worth all different amounts of money. One wouldn’t let six strangers choose the next type of car to buy or where to send a child to college.  So why would someone want those strangers to decide something so important as a lawsuit? Something that to some is the most consequential decision in their entire life?  And then the chance of an appeal? No thank you.

As mentioned, some cases just can’t resolve, and that’s what trials are for.  But the uncertainty of trial is such that the parties should be encouraged to try all they can and resolve the dispute while they still have control over the outcome.

Convenience in a Post-COVID19 world

As courts, particularly trials, were on hold for months and months this year due to the global pandemic, the wait to get to trial will grow for each case heading that way.  With both sides knowing that their case may be tried a year later than they expected due to the global and judicial landscape, finality is something to consider so the parties can move on past their dispute.

With virtual platforms allowing parties and their lawyers to attend mediations from anywhere in the world, spending a couple hours from the comfort of your home is extremely convenient. The convenience of resolving your case through a virtual mediation rather than in trial, for days and days, is worth, to many, money and peace of mind – that can allow parties to be more giving in their negotiations, which could result in a successful agreement at mediation.

Ultimately, trials will still exist, and they should. Forms of Alternative Dispute Resolution (although the term Dispute Resolution is starting to replace the outdated term) however should be considered more often by litigants than they currently are; getting a resolution that all parties can agree to is something worth considering when weighing the pros and cons of trial

Nick Marzuk is an attorney at The Schiller Kessler Group as well as the founder of Marzuk Mediation. He focuses on PIP litigation and personal injury. Nick lives locally with his wife and kids, and his favorite hobby is cooking. For more information, visit www.MarzukMediation.com