Published: September 2022
Author: Debra A. Jenks, Esq.
This article is inspired by my fellow ADR Committee member and Mediator, Alfred A. LaSorte, Jr., and his prior advice “To Succeed in Mediation, Focus on the Numbers.”
I do not know about you, but I went to law school to become a lawyer so I would NOT have to work with numbers. I did not much relate to math – algebra, calculus, differential equations, geometry, trigonometry – and could not wait to get those high school and college classes over with. The most troublesome of my studies was that awful high school math class (I think it was algebra) and the quest to calculate the rate at which, or volume of, water flowing out of the bath tub given the rate at which, or volume of, water flowing into the bath tub. To me the cure was always simple: Put the stopper in the drain and turn the faucet off. Problem solved! So much for that career in civil engineering.
As lawyers representing parties in disputes, lawsuits, or arbitrations we should be striving to resolve their problems as efficiently and effectively as possible. While many disputes may not involve money, most do. You may discuss or debate theoretical results or probable outcomes. But the fact remains that the resolution will have a finite financial value to it. What that number is can be left to strangers – Judges, Jurors, or Arbitrators – to decide, or can be determined by the parties in negotiated resolutions through qualified Mediators.
Clients who are not professional litigants may have very limited encounters with our adversarial legal system for civil actions. They most likely are not in a position to assess what should be a reasonable outcome. They generally cannot fund their disputes on any side of the “versus” case caption with an open checkbook. For many, engaging the services of a lawyer is the choice of last resort.
Frankly, I believe that leaving the resolution of most civil disputes over money in the hands of strangers is the least desirable route. I say this with no disrespect whatsoever to our fabulous Jurists, Jurors, and Arbitrators of Palm Beach County but with a realistic view of how unpredictable the outcome of the dispute could be months or years after the fact. While your clients ultimately may be required to mediate a dispute under statutes, court rules, or contracts containing mandatory dispute resolution procedures, there is no reason to delay in the planning for mediation with the goal of making that mediation successful, even if you mediate the matter more than once.
Picking the right Mediator is obviously critical. Talk to opposing counsel and see if you can agree. Talk to the potential Mediator and ask for references if you feel the need. Depending on the complexity of the matter, you may want a Mediator with subject matter expertise. If your client is a “handful” you may want a Mediator whose temperament is a good fit. Consider cultural or affinity connections. If your client representative is an insurance adjuster or corporate type who is not emotionally engaged, you may want a Mediator who can say (and I do just LOVE this part with an indescribable sense of glee), “well, when I was on the Bench here is how I ruled on those arguments.” There are many great Mediators available so engage one that fits the needs of the case.
As Al pointed out, the numbers are a critical component of money-based claims and therefore the mediation process. How will you prove your client’s damages? Can these damages be awarded by law or contract? How much will your client spend to find out if damages will be awarded at all? How much will your client spend to defend? Can your client be awarded or required to pay attorneys’ fees and costs? Can you collect on a judgment or award for damages? If you can collect, how long will that take and how much more will it cost? The Mediator will ask these questions. Having the answers will go a long way toward bringing the settlement value of the matter into focus.
Instead of leaving the faucet running while letting the water drain away along with your clients’ money, plug the bath tub and stop the unnecessary drain of your clients’ resources.
P.S. Follow this link to the Florida Courts.org site for some great client focused resources regarding Mediation in Florida
The views presented here are that of the author, Debra A. Jenks, Esq., and not of her clients or any organizations with which she is affiliated. After earning her Juris Doctorate, she ultimately focused her practice in the financial services industry dealing with securities litigation, arbitration, regulation, and registration. She is an active practitioner in the Alternative Dispute Resolution arbitration arena and sits as an Arbitrator. As it turns out, she spends a lot of time working with numbers and statistical data.
Debra A. Jenks, Esq.
Jenks & Harvey LLP