I’m Sticking with Zoom for Mediation

ADR Corner0

By: William J. Cea
Published: September 2021

Zoom mediation was thrust upon us last year. At first, the technology was intimidating. I was skeptical about people being in different locations. Some have a concern that remote participation impacts the physical pressure and motivation to settle cases. In my experience, forcing people to travel, find parking, and sit for hours on end in conference rooms waiting for the mediator or meaningful settlement discussions creates frustration. This is particularly true in multi-party complex construction cases where parties may be in rooms for hours on end waiting on other parties to facilitate the process.

Also consider some of the reasons mediations sometimes get cut short. Participants have planes to catch, need to pick up children, tend to other business, etc. If settlement discussions are not progressing quickly enough for participants who must leave, the process is stifled. Imposing pressure on parties to make a deal out of frustration or fatigue is also counter to the core principle of mediation. Namely, self-determination and resolving claims without undue influence. Unfortunately, we also live in a time of escalating violence. Not forcing people who may already be under significant stress into the same rooms and facilities alleviates a safety concern.

For construction cases, there are usually multiple parties, and multiple insurance carriers. An issue that routinely comes up is whether out of state adjusters must physically attend. Zoom makes scheduling mediation easier since adjusters or other participants can attend without having to build in the added travel time. Zoom also permits parties that may have smaller scopes in the underlying construction project the flexibility to multi-task while still being fully accessible and engaged. I have conducted many in person mediations where parties with a smaller role become annoyed to have to sit in a conference for the better part of a day without much interaction with the mediator or say in the outcome of the negotiations.

As an example, a typical construction case could involve a property owner suing a contractor for construction defects, and the contractor asserting third party claims against subcontractors. If there are hot button or big-ticket claims that occupy most of the owner and contractor’s attention, there may be subcontractors that are sitting on the sideline for the bulk of mediation. Parties could be spending much of the day discussing roof claims, while a plumbing subcontractor is looking at his or her watch in a conference room waiting and wondering. The mediator can use his or her best efforts to assure the subcontractor and counsel that they are not forgotten, and yet, they may be wondering why they must be there instead of joining by a virtual room when needed.

The circumstances equally apply to other types of cases including personal injury, medical malpractice, real estate, and other commercial disputes where there are multiple defendants, cross claims, and third-party claims. Think of the added tension of either waiting for parties stuck in traffic or being the person stuck in traffic. How about the stress of wondering what else you have going on in your office or with other cases? What about the cost savings to the parties by reducing the overall time and expense of mediation? Might alleviating some of the additional cost and stress allow counsel and the parties to focus more on the case and think more clearly?

It is also easier to coordinate with parties that may be excused for portions of mediation when their attention is not required. The attorney contact for the party can be texted, for example, when their virtual room needs to assemble.  This has worked well for my mediations, and the parties appreciate the flexibility of being able to tend to other business.

Another benefit of using Zoom is when it comes to meals. Parties can plan for meals and personal comfort. Those who must eat and/or take medications on a schedule are benefited by not having to travel and attend in person. Again, the purpose of mediation is to facilitate resolution by self-determination and not attrition. Signatures can be procured on settlement documents in real time by electronic scan. Attorneys that may be participating from their own offices can multitask and work on settlement agreements during the day and potentially avoid the added time and fatigue that comes with waiting for someone to prepare an agreement at an in-person session. How many times do you spend all day at a mediation, and then must wait around, exhausted, for someone to type up an agreement?

There are no doubt opinions and reasons why people prefer in person mediation. However, just because the availability of in person mediation is returning, it doesn’t mean that Zoom is no longer an option. From my standpoint, I expect there will be a continued appetite for remote mediation and use of technology to avoid some of the stress, inconveniences and issues outlined above.

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

 

William J. Cea, Esq. is a Board Certified Construction Lawyer and Circuit Civil Certified Mediator. He is the past Chair of the Construction Law Committee and member of the ADR Committee and can be reached at (561) 820-2888 or [email protected].

CHANGES IN MAGISTRATE ASSIGNMENTS

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The Circuit welcomes Magistrate Jennifer Klee in her role as Family Magistrate. Ms. Klee began her employment with the Circuit on August 16, 2021. She presides over the South County post-judgment cases in Division FY and the even-numbered cases (post-judgment) in Division FZ. She will be assisted by Shamina Saemmer and can be reached at: 561-274-1433

Effective today, August 27, 2021, Magistrate James Williams is assigned to Family Division FD post-judgment cases and the even-numbered cases, post-judgment, in Division FC. He is assisted by Mayoli Albor and can be reached at: 561-355-1975

Also effective today, August 27, 2021, Magistrate Judi Fanelli presides over all of the Circuit DOR cases—the two DOR divisions have been combined into one division until further notice. Magistrate Fanelli is assisted by Cathy Solis. She can be reached at: 561-4200.

ADMINISTRATIVE ORDER NO. 2.606-8/2021 IN RE: APPOINTMENT OF CHIEF JUDGE DESIGNEE TO HEAR REQUESTS BY GENERAL REGISTRY ATTORNEYS FOR ADDITIONAL COMPENSATION

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Section 27.5304(12)(b), Florida Statutes, requires the Chief Judge, or a single designee, to hear and determine motions filed by court appointed counsel which seek to exceed fee limits.

NOW, THEREFORE, pursuant to the authority conferred by Florida Rule of General Practice Judicial Administration 2.215, it is ORDERED as follows:

The Circuit Court Judge assigned to Division T at the Criminal Justice Complex will act as the Chief Judge’s designee to hear all motions for additional compensation by attorneys on the general registry in accordance with section 27.5304, Florida Statutes. Should a motion be filed for additional attorney’s fee in excess of the limits prescribed by section Florida Statute 27.5304 and the General Appropriations Act, the motion will be sent to the Circuit Court Judge assigned to Division T at the Criminal Justice Complex’s office and hearings will be scheduled by the Judicial Assistant.

DONE and SIGNED in Chambers at West Palm Beach, Palm Beach County, Florida, this 11th day of August, 2021 nunc pro tunc to January 19, 2021.

_________________________________
Glenn Kelley
Acting Chief Judge
* supersedes Admin. Order No. 2.606-3/20

ADMINISTRATIVE ORDER 4.302-08/21* IN RE: PAPERWORK FOR NEGOTIATED PLEAS

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Florida Rule of General Practice Judicial Administration Rule 2.215(b) gives the chief judge of the circuit the authority to require that all judges of the court, other court officers, and court personnel comply with all court and judicial branch policies, administrative orders, procedures and administrative plans. In an effort to streamline the processing of paperwork for negotiated pleas, and to ensure uniformity among each of the Criminal Divisions of the Court, the below entities are responsible for properly completing the documents listed below.

NOW, THEREFORE, pursuant to the authority conferred by Florida Rule of General Practice Judicial Administration 2.215, it is ORDERED as follows:

1. The State Attorney’s Office shall be responsible for filling out the following documents.
a. Plea Sheet
b. Victim Notification Sheet
c. Guideline Score Sheet
d. Judgment
e. Restitution Order
2. The Clerk of the Circuit Court shall be responsible for filling out the following documents:
a. Fingerprint Form
b. Department of Corrections Check List
c. Sentence Order
d. Cost Order
3. Defense counsel shall be responsible for filling out the following forms:
a. Rights Sheet
b. Juvenile Waiver (when appropriate)

DONE and SIGNED, in Chambers, at West Palm Beach, Palm Beach County, Florida this 11th day of August, 2021.
________________________________
Glenn Kelley
Chief Judge
*supersedes admin. order 4.043-9/08

15TH CIRCUIT JUDICIAL NOMINATING COMMISSION NOTICE OF CERTIFICATION OF NOMINEES (JUDGE KRISTA MARX VACANCY)

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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 Krista Marx, pursuant to the Governor’s Letter to Convene dated June 15, 2021:

  1. April Bristow
  2. Lauren Godden Burke
  3. Judge Bradley Harper
  4. Judge Melanie Surber
  5. Stephanie Tew
  6. 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 contact Robert Harvey at (561) 303-2918, or by email at [email protected].

15TH CIRCUIT JUDICIAL NOMINATING COMMISSION NOTICE OF CERTIFICATION OF NOMINEES (JUDGE SANDRA BOSSO-PARDO VACANCY)

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The Fifteenth Circuit Judicial Nominating Commission (“JNC”) takes pleasure in certifying the following nominees to fill the vacancy for a County Court Judge position created by the resignation of Judge Sandra Bosso-Pardo, pursuant to the Governor’s Letter to Convene dated June 15, 2021:

  1. April Bristow
  2. Lauren Godden Burke
  3. Stephanie Tew
  4. Schnelle Tonge
  5. Magistrate Maxine A.M. Williams

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 contact Robert Harvey at (561) 303-2918, or by email at [email protected].

FACE COVERINGS REQUIRED AT ALL CLERK OF THE CIRCUIT COURT & COMPTROLLER OFFICES

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Face coverings will be required to enter any Clerk of the Circuit Court & Comptroller office, effective Monday, August 2.

Face coverings will be required regardless of a person’s vaccination status, and is consistent with protocols issued by Palm Beach County and the 15th Judicial Circuit for employees and visitors to County-owned buildings and courthouses. It is also consistent with updated guidance from the U.S. Centers for Disease Control and Prevention.

The updated requirement for face coverings affects all Clerk of the Circuit Court & Comptroller employees, and all Clerk’s office customers visiting any Clerk’s office location in Palm Beach County. Face coverings will be required until further notice.

Customers who do not want to wear a face covering should take advantage of the Clerk’s online services to:

  • Pay a traffic ticket
  • Create a payment plan for traffic fines
  • Make a child support payment using an electronic check or credit card
  • Purchase court packets at our Self-Service Center
  • File documents for eRecording

A full list of the Clerk’s online services is available at www.mypalmbeachclerk.com/services. To view the flyer, please click here.