June 2020
By: Lawrence Gordon 

What do the Academy Award Nominations, the National Football League and ADR in Florida have in common? There is an appalling lack of diversity in each of them.

All are controlled by white men. In most cases, older white men who are adept at protecting the status quo and fighting the tides of change.  Some argue that diversity should not be considered in the arts, professional sports, and even ADR.  Therein lies the problem.

People of color didn’t receive Oscar Nominations and African American assistant coaches didn’t receive consideration for head coaching positions despite seventy-five percent of league players being African American.  Of the thirty-two NFL teams, only two Head Coaches were African American in 2019.

According to the Florida Dispute Resolution Center, there are approximately thirty-two hundred Supreme Court Certified Circuit Civil Mediators in the state. Unfortunately, only 3.8 percent or 122 are men and women of color.

People of color are often excluded from the process. One cannot win if one is not allowed in the game. Seeking quality and seeking diversity aren’t mutually exclusive. The belief that diversity will work itself out without being fostered and nurtured is rubbish. Diversity isn’t created by good thoughts and well-meaning. One creates diversity deliberately and intentionally.  Bias must be recognized and rooted out for diversity to exist and thrive.  Access and power are rarely given up voluntarily. This usually requires strong and direct actions for change.

In 2006-2007, the Florida Supreme Court changed the rules of qualifications for one to become a mediator.

It created a path for non-lawyers to become Certified Mediators. The lack of diversity among Florida mediators contributed to this rule change.  In a 2019 report, Judicial Arbitration and Mediation (JAMS) called on the legal profession to work harder toward diversity. It asked firms to institute the Mansfield Rule which urges firms to actively pursue diverse candidates for at least thirty percent of their employees.

This is very similar to the Rooney Rule in the NFL which requires any team with a head coach opening to interview at least one candidate of color. While these are admirable efforts, they are voluntary and very little has changed.

Mediation firms have made it difficult for non-lawyer mediator candidates to participate in the ten apprentice mediations required for certification. They argue that many of these candidates are not qualified, open them to serious liability exposure and take jobs from lawyers.  Nonsense, Malpractice insurance covers any errors and certainly the Supreme Court considered these issues before changing the rules. Some mediation firms argue that there are too many mediators. How can that be when Florida’s population is approximately 21.5 million and there are only five thousand six hundred in all categories of Certified Mediators?  What they really should be saying is, if there is an excessive number of mediators, it is because there are too many who are white males.  Perhaps it should become mandatory for these firms to mentor a certain number of mediator candidates of color each year to remain in good standing with the Florida Bar.  The lack of diversity must change.

The larger and more diverse the pool, the greater the chance for new ideas, growth, and perspectives. ADR can be used to push diversity forward by using a diverse list of Mediators and Arbitrators.

In 2018, business mogul and rapper, JayZ was involved in a $204 million-dollar arbitration.  He noticed there were few African American arbitrators for him to select.  He complained to the court, which agreed that the lack of African American arbitrators was discriminatory under the Constitution of New York State.  Again, this situation demonstrates a need for greater diversity.

Recently, I received a call from a prominent personal injury law firm about mediating a case that had been mediated twice before however, remained unresolved. I accepted the case, and after several hours, it was clear that the lack of diversity was an important issue.

The two previous mediators had been white males. The injured plaintiff was the only person of color involved.  I suspect that I was selected because I’m a person of color. The plaintiff felt that his interest wasn’t being protected because he had never seen anyone who looked like him.  Fortunately, I was able to assist in getting the case resolved.  The plaintiff, just as JayZ, felt the process had been discriminatory.

How can the mediation process be fair and equitable if people of color aren’t involved in meaningful numbers? The pool of mediators should reflect the racial, ethnic and gender diversity of the community. Sixteen percent of Florida’s population, over three million, are African American. How can we justify having just over two hundred mediators of color in all Certified categories?  There are seven mediators of color in the 15th Judicial Circuit, covering Palm Beach County, an area of 1.5 million people. These statistics are an indictment of the mediation industry and clearly indicate that the problems are both systemic and institutional. Diversity is about strength, not weakness. There is something about every group that can improve the whole. The ADR community must do better.

 For additional ADR tips and resources, please go to the ADR Committee page of the updated Palm Beach County Bar Association website at www.palmbeachbar.org.

May 2020
By: William J. Cea, Esq.

We have all been to mediations where hours are spent identifying issues, back and forth with factual inquiries, and assisting the mediator to determine terms that need to be negotiated. This may just be part of the mediation process. However, an effective mediation summary can help make the process more efficient. Supplying the pleadings and a description of the case status is helpful, however, I would suggest giving some thought to providing background and insights that will make the process as efficient as possible.

The following are some tips for preparation of an effective mediation summary. First, provide the operative pleadings and a copy of any pending dispositive motions. Next, if there have been any rulings that impact the scope of trial or available remedies you should expound on that. Beyond the pleadings, pending motions and rulings, provide an explanation of what discovery has occurred and what is left to be done. Importantly, this is an opportunity to explain what facts or points have been established in discovery vs. facts and matters that are left to be discovered. The facts yet to be discovered oftentimes manifest as an impediment to settlement. For example, in a construction case even if the parties agree that a defective condition(s) exists, does the defense know how much it will cost to repair? If the cost of repair is something left to be determined or discovered, that should be explained in the summary.

Additionally, how much has been incurred in costs and fees and how much is yet to be incurred? Is there a basis for the recovery of attorney’s fees? Have the parties served Offers of Judgment/Proposals for Settlement? The mediator needs to understand the substance of the case, but it is also important to understand the economics which also drive motivations. We all know that the cost of litigation is usually a practical reality for the parties, and the mediator needs to understand how economics play into the dispute.

Further, are there matters of concern or practical terms that may not be subject of the claims or available relief, but could serve as incentives to settle the case. This is part of the beauty of mediation. The parties are not bound by the four corners of the pleadings and relief that may be awarded by a court or arbitrator. By way of another example in a construction scenario, maybe a contractor disputes the extent of damages. Would the contractor be willing to provide or extend a warranty to help compensate the property owner? Clearly, there are terms that you can seek in mediation that are not available as legal or even equitable remedies that may bridge the gap of the typical monetary negotiation. Brainstorming the what ifs and laying some of that our in a mediation summary will help you prepare for mediation and aid the process.

Thus, the bottom line is that mediation is a process and will usually require some time before the parties can “get down to business”. However, you can facilitate a more efficient process and reduce some of the frustration that participants have with the amount of time and sitting in caucus sessions by providing an effective mediation summary.

William J. Cea, Esq. is a Shareholder with Becker & Poliakoff, P.A., and is based in the firm’s West Palm Beach Office. Mr. Cea is a Board Certified Construction Attorney and Certified Circuit Court Mediator. Mr. Cea concentrates his practice in the areas of construction defects litigation, public procurement and mediation. Mr. Cea has lectured for several organizations, on topics such as mediation and construction law, including The Florida Bar, the Florida Association of Public Procurement Officials, Inc., the Construction Owners Association of America, Nova Law School, and the Palm Beach County Bar Association. He may be reached at (561) 820-2888, or via email at [email protected].

For additional ADR tips and resources, go to http://www.palmbeachbar.org/adr-2