Selecting the Right Mediator

Published: June 2022
Author: William J. Cea, Esq.

Pursuant to Rule 10.200 of the Florida Rules for Certified and Court-Appointed Mediators (hereinafter “Rules”), court appointed mediators are mediators selected by the parties or appointed by the court as the mediator in court-ordered mediations. The Rules provide ethical standards of conduct for certified and court-appointed mediators. In my experience, it is the parties who generally select the mediator.

How should the parties select a mediator? Counsel for the parties may look at factors such as availability, professional reputation, subject matter experience, fees and costs, mediation style and the like. Often-times, counsel for the parties may practice in specific areas of the law and have their “go to” mediators that they prefer.

For the most part, the attorneys will circulate a few proposed mediator names and agree on one. I would suggest that counsel take some time to consider whether the proposed mediators are right for the case. While a mediator is not required to have substantive knowledge of the type of case, that is one factor to consider. Other factors that may be more subtle include the mediator’s availability for pre-mediation caucuses, demeanor, and ability to be empathetic, as examples.

On the one hand, the Rules provide that the ultimate decision-making authority rests solely with the parties. On the other hand, the mediator should have the ability to reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and otherwise act as a facilitator of resolution. For example, as a construction attorney, I may be able to point out impediments to resolution of a case involving alleged defects. It may be the case where parties have expended significant time on liability but not damages. It is helpful to point out potential roadblocks to the attorneys, where possible and without breaching confidentiality, to avoid frustration during mediation. If the defense does not know how much the plaintiff thinks it will take to make repairs, it will create a hurdle to settlement. The Rules permit a mediator to provide information that the mediator is qualified by training or experience to provide, so long as it is consistent with impartiality and preserving self-determination. In other words, impartiality and neutrality are not mutually exclusive with knowledge and experience.

You may want to ask yourself questions, such as: What is the nature of the dispute and who has experience in the area? How much of a factor will demeanor be for the parties? Will the clients benefit from pre-mediation caucus sessions or other conferences to facilitate the process and is the mediator available? Will language or other cultural differences be an issue?

We have all heard attorneys and parties say they want a “strong” or “assertive” mediator, but what does that mean and is that the right approach to selecting a mediator? Perhaps the better question is whether the mediator is the right fit for the case? How will my client feel about the mediator and the process? What are the mediator rates and policies as to minimum fees and/or travel expenses? Does the mediator have the time to commit to parties to the extent necessary?

Another approach is to call prospective mediators to discuss availability and any concerns or priorities that you may have in mind. My presumption is that most mediators would welcome the opportunity to discuss a potential matter, their availability, and what you envision for the process.

The use of alternative dispute resolution procedures is on the rise. Whether mediation is voluntary, required by contract, or court ordered, the pool of qualified mediators has increased along with the demand. My personal bias, if I am allowed to say that, is to locate a mediator that has substantive experience in handling the type of issues and dispute and the availability to commit the time needed to the parties. For the most part these factors weigh more heavily in my mind, however, there are always more unique scenarios where the personality of the parties may require a different type or style of mediator.

The bottom line in my opinion is to expand on the traditional approach of recommending use of the “go to” mediator list and ask some questions, such as those outlined above. You may have a great relationship with a mediator and feel entirely comfortable with the style and costs, but will your client agree?


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 @ wcea@beckerlawyers.com.

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

I Am a Mediator Because Peace Has a Value

Published: May 2022
Author: Mark Greenberg

12 years ago, I went through a divorce.  It was a long, expensive, and emotionally painful process for both of us. Pamela, my former wife, and I did not hate each other.  We simply were not going to remain married and had a few strong disagreements about how that was going to look moving forward.  Both of us were hurt, worried about our two children, and probably beginning to realize we needed to examine our own shortcomings and how that had contributed to the end of our marriage.  We had to mediate three times, with two different mediators, to settle our case. Finally, we each compromised, signed the settlement agreement, and began to move on with our lives.

Over time our wounds healed, and we made peace with each other.  Without ever expressly saying it (at first), we both acknowledged we had not treated the other person well during the marriage.  Most importantly, we forgave each other.

As we healed, we talked about how the divorce went.  We both realized that we had spent a lot of time, a lot of money, and expended an endless amount of emotion which could have been avoided had we settled earlier.  We realized that the mediator we used for the first two mediations was the wrong person.  She was, and is, a very good mediator, but she was simply the wrong person for our issues and personalities. Finally, when we brought in the right person, that made all the difference. She was able to help us break through the logjams and settle our divorce.  Otherwise, we probably would have ended up in trial, and we certainly would have ended up fighting for a long time after the trial.  That mediator allowed us to break down our barriers and work through the remaining issues to resolve our divorce.  I am not saying it was “amicable”, but rather it laid the foundation for us to become amicable over the next several months.  That mediator therefore provided both a legal benefit in helping us settle, and an emotional benefit for allowing us to recognize where each person was coming from and move forward peacefully over time.  That peace was a huge advantage for our kids, who could at least see us co‑parenting well, even if we were no longer married.

In short, I learned that Peace Has a Value.  The peace that came from the divorce being final, the peace that came from being able to move forward with our lives, and the peace that allowed us to wake up and not have the weight of the case hanging over us every day.  When we left the final mediation, we each of course thought we had given up too much. But over time, we both were happy we had stopped the bleeding and were able to move forward.

It was after that I became certified as a mediator, and that is now all I do.  Mediation is a wonderful way to provide real value to people who come before you, while making a living.  I know that even when people leave a little disappointed in how the case settled, 2 weeks later they are usually very happy to have it off their plate or to have closed that file, and to have moved on with either their lives or to the next case. Attorney’s clients are happy, and that leads to more clients for that attorney.

Financially, we estimate each settled case saves between $200,000.00 and $250,000.00 in legal fees versus going to a jury trial. In 2021, our average mediation cost was $1,500.  $200,000 divided by $1,500 equals $133 saved for every $1 invested. That is a return on investment (“ROI”) of 13,000%. It is the best investment the litigants can make.

I would like to clear up one myth about mediation though.  If a case does not settle, I do not go home, relax, and forget about it as if it never happened.  If I think that case could have settled, I do the same thing I did after I lost a trial or had a big hearing go the wrong way.  I do a complete postmortem on it, thinking about what I could have done differently, how I could have asked different questions, and thinking it through. I do this so I can be better the next time, and most good mediators I have spoken with do the same thing.

Do we spend all weekend preparing for trial?  No.  But we do think through how we could have helped you avoid spending that weekend preparing for trial, and hoping the next time we are able to do that.


Mark Greenberg is the founder of Breakthrough Mediation. He has tried over 100 cases to verdict, representing both Plaintiffs and Defendants. He now mediates cases throughout Florida, saving clients over $25 million dollars in legal expenses during 2021, while helping them find peace in the resolution of contentious disputes. www.btmediation.com

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

To Succeed in Mediation, Focus on the Numbers

By: Alfred A. LaSorte, Jr.
Published: April 2022

Litigation is stressful, risky and expensive. A form of civilized combat. Understandably, parties often view litigation, and form expectations as to its outcome, through an emotional lens. They bring all sorts of unhelpful motivations into the mediation room – a desire for revenge perhaps, or a need to prove they were right, or that the other side was wrong, or to prevail as a matter of principle.

Objective compromise, so crucial to successful mediation, requires a different analysis on both sides – one focusing on numbers, not feelings.

An auto accident case about compensation for serious physical injury. A suit between former business partners over profits. A manufacturer’s suit over an unpaid invoice. These cases have one thing in common – the only relief a court can grant is an award of money, not an apology.

At mediation, the plaintiff will rarely ever see an offer as high as their “best day” in court, and a defendant won’t likely see a plaintiff agree to just go away. Mediation is not about “best day” results – it’s about compromise. Objectively analyzing the numbers, on both sides, facilitates this compromise and gets cases settled.

Here’s a simplified example: A plaintiff suing a defendant for $100,000, with a more or less 50% chance of winning. Doing the math, a settlement in the $50,000 range (i.e., 50% of $100,000) should make sense, since that equates to the plaintiff’s odds of winning, and defendant’s odds of losing. (If the odds of winning were 30%, then the $30,000 range would be more realistic.)

I can already hear your objections. “Where’s your crystal ball? Nobody can predict result percentages with any accuracy” and “What about fees and costs? You forgot to factor them in.”

Hey, I did say “simplified” example, remember? And you’re right. Anything can happen at trial. But a case that survives to the point that it’s now in court-ordered mediation has some chance of winning. And no case is such a slam dunk that its chances are 100%. The hard part is reliably determining the range.

After some discovery, most trial lawyers develop a general feel for a case’s chances. Is it 50/50? Better than that? Worse? Do your best to come up with a range.

In my nearly forty years trying cases I had many client conversations where “better than 50/50” or “less than 50/50” chances were discussed. Whatever you conclude, discuss it with your client, whether plaintiff or defendant. And be candid that slam dunks in court don’t exist. Ever.

If your plaintiff/client isn’t willing to discount their “best day” number for the risk of loss, it’s time for a serious discussion about the things that can go wrong in a trial. Let’s face it – few cases have a 90% chance to win or to lose. Or 80%, or even 70%. But clients don’t know this unless you tell them. They all think they’re going to win!

If your defendant/client refuses to pay a single dollar “on principle,” it’s time to explain to them that moral victories are few and far between, and that they are expensive.

Which leads to your other objection – factoring legal fees and costs into the equation. This factor actually makes settlement easier. We commonly mediate cases where the fees on both sides will exceed the amount in dispute if the case doesn’t settle. In my $100,000 example, if the fees will exceed $50,000 on each side, wouldn’t it be crazy not to settle before both sides spend all that money? Everybody “wins” when these $100,000 in extra fees are avoided. (Okay, everybody but the lawyers.)

Even in contingency cases, with a law firm advancing the costs, a well-placed defense settlement proposal exposes the plaintiff to the risk of owing defense fees if they lose. A mediation settlement avoids this risk entirely.

I submit that, as your client’s counsellor, it’s your job to make sure they understand all of this before the mediation begins. How do you persuade them to realistically factor in the risk of loss and their inevitable out-of-pocket costs? It’s not that difficult if you are willing to frankly discuss the case with them.

So talk about risk of losing. About how witnesses forget, or don’t show up. How judges and juries can make mistakes. How there are a hundred things that can go wrong and hurt their case.

Talk about the costs of litigation. Give a frank estimate of the costs through trial. And appeal. Put pencil to paper with your plaintiff/client and estimate the net “dollars in their pocket” from a trial. Or with your defendant/client estimate what a loss will cost them. And do it before mediation starts.

The mediator can help you with this. But it must start with frank discussions with your clients well in advance. A client with unrealistic expectations may not suddenly get realistic once mediation commences.

So do the math with your clients. You will do them a tremendous service if you help them become objective, thereby helping them reach a fair settlement.


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 Al@LaSorteMediation.com.

Should You Roll the Dice When Selecting A Neutral[1] Arbitrator and Why the Selection Method Matters

By: Daria Pustilnik 
Published: March 2022

We have all been there: an arbitrator looks great on paper but proceeds to dislike your client or make irrational decisions. I arbitrated one client’s identical agreements in two separate proceedings under the same rules and with the same arbitrator. He gave opposite rulings on the same discovery issues. Recently, without any input from the parties, a court appointed a neutral who had made public comments adverse to our position, but the neutral has been fair thus far. Therefore, it sometimes appears that it is easier and cheaper to roll the dice on the arbitrator. However, another school of thought is that the careful selection of an arbitrator is important as it allows the party to retain some control.

Selection vs. unilateral appointment

Agreement of the parties is the most obvious way of arbitrator selection. Otherwise, the basic methods are: (1) selection from a list where the parties strike or rank the arbitrators the institution proposed, and (2) unilateral appointment by the authority (“rolling the dice”).[2]  Widely-used rules use both methods.[3] Generally, U.S.-centric institutions prefer the list selection process, and international institutions and UNCITRAL favor unilateral appointment.[4] Unilateral appointment may save costs because negotiations are minimized, but the downside is the lack of control. If you prefer not to roll the dice, helpful information is available.

Ex parte pre-appointment interviews and considerations in arbitrator selection

The arbitrator’s independence, impartiality, qualifications, willingness to serve, and security measures taken to protect the parties’ data are paramount. These factors either must be disclosed or can be discovered through the institution or pre-appointment interviews. Unless prohibited by the arbitration clause or applicable rules, limited ex parte communications with the arbitrator may be permissible.[5]  These should be relevant to the appointment process and exclude discussions of the merits.[6]  For example, a party may ask whether the arbitrator represented a certain government or party even if they are not in the case, and had past business or professional relationships or current involvement in other arbitrations with the opposing party or counsel.

Other aspects that are harder to discover are also important: efficiency of case management, speed of resolving cases, past discovery rulings, average claim and award amounts, and percentage of pre-award settlements. Services have started to offer reports on arbitrators. As the volume of data increases, these reports will become more useful.

Award enforcement proceedings confirm that arbitrator selection process matters

Inappropriate arbitrator selection may undermine the award. For example, in PoolRe Insurance, the disputes were governed by two contracts, one requiring AAA arbitration, and the other an ICC arbitration with the Director of Insurance in Anguilla selecting the arbitrator. [7] The Director of Financial Services Commission of Anguilla advised that there was no such official and designated the arbitrator acting under the first contract to make the selection.[8] The arbitration proceeded under the AAA rules over objections.[9] The district court vacated the award under both contracts and the Fifth Circuit upheld on two grounds: (1) the arbitrator selection process was not followed, and (2) the arbitrator exceeded his authority by applying AAA instead of the ICC rules.[10] In a footnote, the court addressed the fact that because no Director of Insurance existed in Anguilla, the ICC arbitration clause could not have been followed, and noted that the Federal Arbitration Act allowed a party to ask the district court to appoint the arbitrator.[11] Thus, the proper method of arbitrator selection is critical and mistakes in arbitration clauses can be fixed early.

In sum, there are two schools of thought on arbitrator selection: unilateral appointment by the institution and selection by the parties. Unilateral appointment comes with potential savings but less control. Helpful tools exist for uncovering critical information but failing to follow the proper process will undermine the award. Relatedly, Anguilla is a lovely destination in the Caribbean where rolling the dice may not be too bad.

————————–

Daria Pustilnik is a lawyer with Kobre & Kim, a disputes and investigations firm with offices worldwide. Daria has represented clients in their domestic and cross-border complex commercial disputes in state and federal courts; under the rules of the American Health Lawyers Association, American Arbitration Association, International Centre for Dispute Resolution, and the London Court of International Arbitration; and in arbitration-related litigation, such as arbitration award enforcement cases. Daria is experienced in handling matters involving simultaneous arbitration, bankruptcy, civil and agency proceedings in multiple jurisdictions, such as the U.S., UK, BVI and Russian Federation. Before joining Kobre & Kim, she practiced at Shutts & Bowen LLP, and served as a law clerk for Judges Kenneth A. Marra and James M. Hopkins in the Southern District of Florida. Daria can be reached at daria.pustilnik@kobrekim.com or 347-899-0423.

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

 

[1] This brief article focuses on selection of a neutral arbitrator as opposed to nonneutral party-appointed arbitrators.

[2] Another method is for the parties to appoint two arbitrators who then select the presiding member of the panel. This process merits a separate discussion that is beyond the scope of this article.

[3]

Rules Method
American Arbitration Association Commercial Arbitration Rules (2018)

https://www.adr.org/sites/default/files/CommercialRules_Web_FINAL_0.pdf

List

(Rule R-12)

International Centre for Dispute Resolution International Arbitration Rules (2021)

https://go.adr.org/rs/294-SFS-516/images/ICDR_Rules.pdf

List

(Article 13(6))

JAMS Comprehensive Arbitration Rules & Procedures (2021)

https://www.jamsadr.com/rules-comprehensive-arbitration/

List

(Rule 15)

American Health Law Association Commercial Arbitration Rules (2021)

https://www.americanhealthlaw.org/dispute-resolution-services/arbitration/rules-of-procedure-for-arbitration/commercial-arbitration#Section%203

List

(Rule 3.2)

FINRA Customer Code (2007)

https://www.finra.org/arbitration-mediation/printable-code-arbitration-procedure-12000

List

(Rule 12400)

UNCITRAL Arbitration Rules (2010)

https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/arb-rules-revised-2010-e.pdf

Unilateral appointment

(Article 8)

International Chamber of Commerce Arbitration Rules (2021)

https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/

Unilateral appointment

Article 12(3))

London Court of International Arbitration, Arbitration Rules (2020)

https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2020.aspx

Unilateral appointment

(Article 5)

 

[4] In the unilateral appointment cases, a party can usually still challenge an appointment where necessary.

[5] The College of Commercial Arbitrators, Guide to Best Practices in Commercial Arbitration (4th Ed.), James M. Giatis (Editor in Chief) (2017), Ch. 2.

[6] Id.

[7] PoolRe Ins. Corp. v. Organizational Strategies, Inc.783 F.3d 256, 258-65 (5th Cir. 2015).

[8] Id.

[9] Id.

[10] Id.

[11] Id., fn. 12.

In Memoriam: Theodore Anthony Deckert

By: Adam Myron
Published: February 2022

The ADR community and the community at large recently suffered a tremendous loss with the passing of Theodore “Ted” Anthony Deckert at the age of 70.  The Alternative Dispute Resolution Committee of the Palm Beach County Bar Association, of which Ted was an active member, mourns his loss and wishes this month to use this space – typically dedicated to a robust discussion of topical ADR issues – to celebrate Ted’s life.

Born and raised in West Palm Beach, Ted was a product of Palm Beach County’s public school system, having graduated from Forest Hill High School before enrolling at the University of Florida.  There, he earned his undergraduate and legal degrees before returning to Palm Beach County.

In 1976, Ted began his legal practice as a civil trial attorney, and in 2000, he became a Florida Supreme Court Certified Circuit Civil & Family Mediator so that he could help people creatively make peace by resolving their legal disputes.

As a mediator, Ted was prolific, and dedicated much of his time to bettering our profession.  Ted served on the Palm Beach Bar’s ADR Committee for many years (including as its Chair), he was a contributor to the First Inaugural Mediation Mentoring Academy, and he was a frequent contributor to the ADR Corner you’re reading right now. 

And yet, Ted was so much more than the attorney and mediator we knew and loved.  In 1983, Ted became a founding member of The Lord’s Place, an organization committed to ending the cycle of homelessness.  His personal mantra was “embrace the journey,” and he loved travel and adventure.  Whether it was hiking in remote areas of the country, rappelling down the side of the Comeau Building in West Palm Beach to raise funds for The Lord’s Place, or flying around on a water jetpack over the intracoastal alongside Flagler Drive, Ted took every opportunity he could to better not just his own life, but also the lives of those around him.

Ted’s legacy lives on through his wife of 19 years; his father; his three brothers, three children, stepson, and all their respective spouses; his four nephews; and his six grandchildren.  His legacy also lives on through us.  Ted, your absence is tremendously felt, but so is the positive impact you had on all of us.  We will do our utmost to live up to your example.


Adam Myron is an attorney with the law firm of Cagnet Myron Law, P.A., where he focuses on complex civil litigation, including commercial and business litigation and trust & estate litigation.  Adam is also a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator.  You can email him at amyron@cagnetmyronlaw.com.

Managing Client Expectations in Mediation

By: Al LaSorte
Published: January 2022

One reason that mediations fail is parties arriving at mediation with unrealistic expectations about settlement terms. By educating their clients about the mediation process and frankly discussing the strengths and weaknesses of their cases with them, lawyers significantly increase the likelihood of reaching a mediated settlement.

Several reasons for clients’ unrealistic mediation expectations come to mind. First, litigation is stressful.  Whether as plaintiff or defendant, a pending suit can be the most stressful problem in a client’s life. Litigants with little court experience may be hoping the other side will just wave the white flag at mediation and give them the result they seek. This, of course, never happens in the real world.

Second, because lawyers generally like their clients and their cases, it’s understandable that some “preaching to the choir” occurs between lawyers and clients about their cases’ strength. While expressions of case enthusiasm may engender clients’ confidence in their lawyers, they can also make it harder for clients to objectively evaluate their cases’ weak points, thereby overestimating their own cases and underestimating their opponents’.  This, in turn, makes compromise much harder to achieve.  And compromise, of course, is the very heart of the mediation process.

Third, law firm ads on TV, radio, social media and billboards bragging about their clients’ huge recoveries no doubt inflate expectations as to what plaintiffs can expect in their own cases.  The same is true when clients hear anecdotally about all the money Uncle Louie or their next-door neighbor won in their lawsuits.

For mediation to succeed, it is crucial for all parties to objectively evaluate their cases’ strengths and weaknesses, as well as outside issues such as collectibility, before entering the mediation room (or, more likely these days, joining the Zoom conference).

Granted, it’s not always easy for lawyers to be candid with clients about their cases’ weaknesses. Will the client think the lawyer doesn’t believe in their case if she points out its flaws?  Will the client maybe start looking elsewhere?

There is an obvious tension between a lawyer’s roles as advocate and as counselor. But clients need both. A frank discussion of a case’s bad points not only increases the likelihood of settlement at mediation, it also helps with expectations in the event the case ultimately has to be tried.

Clients also may not appreciate how outside variables can impact the result if the case must be tried, regardless of the case’s merits. Witnesses’ memories fade; judges are human, and sometimes make mistakes; many areas of the law are unsettled and therefore uncertain; appeals are expensive and difficult, and can take years to complete. Building an informed and realistic client requires all these issues be discussed and taken into account.

Managing client expectations requires certain steps before, and others during, mediation. Before mediation, be sure to incorporate discussion of the weaknesses in your client’s case, and the uncertainties in litigation in general, into your preparation regimen with the client. This can be done constructively, and doesn’t have to cause your client to doubt your enthusiasm, or your intention to give one hundred percent toward achieving the best possible result for them.

There are so many things that could go right, or wrong, in every lawsuit. Yet, I can’t tell you how many times, as a mediator, a party bragged to me that “my lawyer says I’ve got a ninety percent chance to win.  Why should I settle for less?”

Clients with such high expectations are understandably reluctant to compromise meaningfully. A more candid pre-mediation discussion with the client about what could go wrong would help them to understand the real risks, and to factor them into their evaluation of what a reasonable compromise would look like.

Ideally, your mediator will be someone the client considers authoritative. Retired judges have that gravitas which lends them credibility in a mediation setting. So do litigators with long careers in the particular area involved in the case.  A mediator who has spent years trying similar cases will likely be seen by your client as an expert. With that expertise comes credibility as to the hurdles that the case presents.

During mediation, look to the mediator for assistance with an unrealistic client. In private caucuses, don’t hesitate to ask the mediator what problems they anticipate a trial will present.

Then, when the mediator moves to a different room, take advantage of this private time with your client to discuss the points the mediator just raised. This can be done constructively, and without sounding like you think the case is a loser. Remember, you are not just their trial lawyer, you are their counselor. So, counsel them!

In conclusion, successful mediation depends on your client becoming as objective as possible about the chances of success and failure. Frank discussion in advance of, and during, mediation will help your client develop reasonable expectations, in turn increasing the likelihood of settlement.


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 Al@LaSorteMediation.com.

Arbitration Case Law Update

By: Donna Greenspan Solomon
Published: December 2021 

 

Hamrick v. Partsfleet, LLC, 1 F.4th 1337 (11th Cir. 2021).  Federal Arbitration Act’s (FAA) carve-out exception to final judgment rule, which allows review of some district court interlocutory orders, including orders denying petitions to order arbitration under federal law, does not provide a carve-out for orders denying motions to compel arbitration based on state law.

Calderon v. Sixth Rent a Car, LLC, 5 F.4th 1204 (11th Cir. 2021).  Customer’s class action claims against car rental agency for breach of contract and violation of two states’ consumer protection laws, based on its charge for damages to car that allegedly had not occurred, did not arise out of customer’s contract with online travel booking company, as would support arbitration of claims under Federal Arbitration Act’s (FAA) strong policy favoring arbitration; although customer’s contract with online booker was governed by FAA, dispute in question was not an immediate, foreseeable result of the performance of online booker’s contractual duties.

McLaurin v. Terminix Int’l Co., LP, 20-12904, 2021 WL 4236673 (11th Cir. Sept. 17, 2021).  Under the Federal Arbitration Act (FAA), in addition to the losing party being allowed to oppose the winning party’s motion to confirm the arbitration award, the losing party can also take up to three months from the arbitration award to file a separate motion to vacate, modify, or correct the award.

Laurel Point Care & Rehab. Ctr., LLC v. Estate of Desantis by & Through Desantis, 323 So. 3d 186 (Fla. 4th DCA 2021).  Arbitrator, and not trial court, had authority to decide whether arbitration agreement, which specifically referenced and incorporated American Health Lawyers Association (AHLA) Alternative Dispute Resolution Service Rules of Procedure for Arbitration, was a separate document so as to satisfy requirement in arbitration rules; reference and incorporation of AHLA rules in arbitration agreement was a clear and unmistakable delegation of authority to have arbitrator decide issue, and AHLA rules used mandatory language requiring arbitrator to decide issue.  The trial court exceeded its authority by concluding that the arbitration agreement did not satisfy a requirement in the AHLA rules as that was an issue clearly delegated to the arbitrator under the rules.

Russell v. Hydroprocessing Associates, LLC, 46 Fla. L. Weekly D1352 (Fla. 1st DCA June 10, 2021).  Employee executed two contemporaneous employment agreements with related companies.  One agreement included an arbitration provision.  The other agreement did not include an arbitration provision but included an integration clause stating that the agreement was the entire agreement between the parties and superseded all prior agreements.  The trial court passed the issue of arbitrability to the arbitrator, which was error.  It is the trial court’s responsibility to determine whether a valid arbitration agreement exists especially where, as here, the arbitration clause itself is challenged.  The court’s responsibility to determine whether a valid arbitration agreement exists is not altered by conflicting arbitration provisions.

Leder v. Imburgia Constr. Services, Inc., 46 Fla. L. Weekly D1719 (Fla. 3d DCA July 28, 2021).  Homeowners and construction contractor waived their right to arbitrate change order dispute.  Construction contract’s dispute resolution procedure provided that submission of dispute to agreed-upon Initial Decision Maker (the Miami Shores Village Building Department Official) was condition precedent to mediation, which was condition precedent to arbitration.  However, contractor failed to file claim with Initial Decision Maker after change order dispute, the homeowners filed a complaint in court rather than with Initial Decision Maker, and contractor did not move to compel arbitration in answer to homeowners’ complaint but merely moved to dismiss the complaint, which the trial court granted in error.

Marino Performance, Inc. v. Zuniga, 4D20-1463, 2021 WL 3641855 (Fla. 4th DCA Aug. 18, 2021).  Automobile dealer waived right to arbitrate as to unnamed class members in class-action proceeding.  Dealer, which filed motion to compel arbitration on eve of certification hearing, had done nothing to preserve its right to arbitrate in the event of class certification.  Dealer’s responses to interrogatory and document requests were directed to class representatives and proposed class members, and dealer had attempted, unsuccessfully, to have entire action dismissed on the merits.  It was only after that unsuccessful attempt, and months later, that dealer attempted to compel arbitration.  The key ingredient in the waiver analysis is fair notice to the opposing party and the court at a relatively early state of litigation of a party’s arbitration rights and its intent to exercise them.


Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA Chair-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  Donna is a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com.

How to Make Your Client Amenable to a Mediated Settlement

By: Judge (Ret.) Kenneth Stern
Published: November 2021 

Let’s face it.  When you have the intake conference with a potential new client, you must assure him or her that, by retaining you, s/he would be in the hands of a competent litigator who knows how to try cases.  If you don’t create a strong impression in that regard, the client will likely head for the door, telling you “I’ll think it over and get back to you,”  to seek an attorney who creates the desired impression.

It is difficult to inform the potential new client in the intake conference that perhaps the case can settle for a worthwhile amount and thereby avoid the time, expense and uncertainty of going to trial, perhaps two or three years from now, without seeming to create the impression that you might not like to try cases, or that you’re not very good at it.   However, skillfully approaching the subject can create the impression that you’re an experienced warhorse who can get the best possible outcome for your client either in the courtroom or in the mediation room, whichever serves the client the best.

If you’re chary of broaching the subject of settlement at the intake conference, fine.  Have the client retain you, and await a moment when the client has seen the negative evidence the other side has to present.   That moment can be months after the intake conference, by which time you will have also identified evidence and witnesses both favorable and unfavorable to your case.

There is a basic approach to opening the client’s mind to the value of a good settlement without making it look as though you’re afraid to go to trial.  I used this approach when I was litigating and mediating cases before going on the judicial bench, and I use it now as a mediator;  you can use it as a litigator in a way that preserves your appearance as a competent, aggressive courtroom lawyer.

There will be various facts, items of evidence, and potential trial witnesses that will come to light during the discovery process, which are not favorable to your case.  Keep your client apprised at reasonable intervals of these developments, as well as those favorable to your case.  In these contacts with your client, ask the client questions to elicit more information that will help you assess the strengths and weaknesses of your case and the opposing party’s case.

Have the client advise you whether potential witnesses can be shown to have a bias in favor of the party in whose favor the witness would testify.  Ask the client such things as what preceded a threatening email your client or the opposing party sent to the other;  what a potential witness could tell the jury that would be helpful or harmful to your case;   are there other potential witnesses who could testify about the adverse party’s having acted similarly to others;  the list of issues you could discuss with your client is endless.   In these discussions, your client will begin to appreciate that your case is not a slam dunk.

Now you are ready to say something to your client that will underscore the uncertainty of what the outcome of a trial could be.   Let your client understand that you are an experienced litigator and a capable warrior in the courtroom, but that the best warrior in the world will not do very well if s/he is armed only with a slingshot and the opponent has a Sherman Tank.   Note, if this is the case, that your case has some strong points and good evidence,  but that there are weaknesses, and point them out.

Explain the legal concepts that could reduce your client’s recovery, such as comparative negligence, or anything the client did that could lead the jury to find that your client was the main cause of the events of which s/he complains and of the resulting damage, or your client’s failure to mitigate damages;  or the statutes and/or case law that could limit the client’s recovery.   If there is a contractual or statutory provision that could render your client liable for the other side’s attorney’s fees and costs, point this out and note any facts or evidence in the case that could lead to this result.

Explain to your client that, after you win the case, the other side will probably appeal, and the appellate decision might not be announced for as much as a year, and the appellate court might send the case back down for a new trial.  Make sure the client understands how much all of that could cost,  and that even a successful recovery at trial could be only slightly more, or even less, than the client will have spent on your fees and costs over the years involved.

Having gradually informed your client’s perceptions with an understanding of the realities of litigation,  you will not have to overcome a naïve client’s pie-in-the-sky expectations.   Instead, you will have a client who can intelligently discuss with you the question of whether a settlement offer is worth taking.

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

 

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Since retiring from the Circuit Court bench, Judge Kenneth D. Stern has served as a Mediator, Arbitrator, Special Magistrate, Hearing Officer and Umpire.  After law school (where he was Editor-in-Chief), he clerked for an appellate judge, served with the Antitrust Division of the U.S. DOJ, and as an Asst. U.S. Atty. in the Southern District of Florida.  In 1981, he came to our county, and practiced civil litigation and criminal defense, in federal and state courts.  In 1999, he was appointed to the bench by Governor Jeb Bush. Judge Stern may be reached at kdstern@gmail.com or at 561-901-4968. 

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

Mediation, One of the Answers to Conflict and Disruption!

By: Lawrence Gordon
Published: October 2021 

It has been more than a decade since I decided to become a Florida Supreme Court Certified Circuit Civil Mediator. I was smitten by the Mediation process in the 1980s while attending mediations and negotiating on behalf of several insurance carriers. Mediation was relatively new and rarely used in settling injury claims at that time. I knew right away that I wanted to be a Certified Mediator and own a mediation practice. I was blessed to start Phoenix Mediation in 2018.

I have been a member of the Palm Beach County Bar Association for several years. I am honored to serve on the Alternative Dispute Resolution (ADR) Committee. Even though I have published several articles in the Palm Beach County Bar Association Bulletin, this one is different and special. The ADR Committee invited me to write this article in honor of “Mediation Week,” October 18-22, 2021. I want to thank them all for the confidence that they have shown in me. I would like to especially thank Ted Deckert for encouraging me to step forward in his stead as he has historically written the “Bulletin ” article for Mediation Week.

Mediation Week is recognized by both the American Bar Association and the Florida Bar Association. In the past, the American Bar Association has emphasized such Mediation Week themes as Mediation, Civil Discourse, and The Importance of Selecting Diverse Neutrals. This year’s theme is Mapping the Future So Conflict Doesn’t Disrupt. Additionally, the Association for Conflict Resolution (ACR) has declared October 21, 2021, as “Conflict Resolution Day.”

This year’s theme seems very appropriate as we appear to have become a tribal society. Red versus Blue, liberals versus conservatives, 

White versus Black and on and on. How do we address these issues and conflicts to avoid them disrupting the future of this great nation? Mediative-type activities may very well be our best path to cooperation, communication, and positive future societal growth. Our best route to a society where diversity, equality, and inclusion become our reality and not just a nice-sounding phrase that’s often spouted while little to nothing changes. A world in which we hear and listen to each other, a society where we accept each other’s points of view even if we can’t agree. Mediative-type activities can create a world where we depersonalize and depressurize situations by focusing on issues, rather than people. One where we do our homework before making asinine ignorant statements, where we keep open minds, care about others, and empathize with our neighbors. We should take time to educate ourselves about our neighbors and remove ourselves from negative situations which have shaped much of our past. Mediation-type activities can certainly help us structure things in a way that lessens conflicts and disruption. We can make a difference.

Once again, our ADR Committee will be doing its part to make Mediation Week a success. We will again ask the Palm Beach County Commission, the Palm Beach County School Board, and various cities throughout Palm Beach County to issue proclamations officially declaring October 18-22, 2021, Mediation Week in their respective municipalities. As a six-term elected official and Vice Mayor in the Town of Haverhill, I previously spearheaded our proclamation process and will continue to do so this year. The Palm Beach County Bar Association President, the ADR Committee chair, and ADR committee members will appear before various commissions to accept proclamations and speak on the importance of Mediation Week and civil discourse.

As usual, the ADR Committee will present its annual lunchtime seminar during Mediation Week. Visit the Palm Beach County Bar Association’s website for details: https://www.palmbeachbar.org/.    

Please also watch for details about our signature event, the 19th ANNUAL ADR SEMINAR coming February 2022.


The ADR Committee will continue to offer speakers to civic groups and other professional organizations to discuss mediation and alternate dispute resolution in general. Any group wishing to invite an ADR speaker should contact the ADR Committee Chair: Kenyetta Alexander: kenyetta@osherowpllc.com. We also invite you to visit the ADR Committee webpage at https://www.palmbeachbar.org/adr for previously published articles and other information on mediation and alternate dispute resolution.

Lawrence Gordon is President of Phoenix Mediation, LLC. He is a Florida Supreme Court Certified Circuit Civil Mediator and a Florida Supreme Court Qualified Arbitrator. He’s a member of the Florida Academy of Professional Mediators and serves on the Florida Bar Board of Governors Advisory Committee. Mr. Gordon’s email address is lgordon@phoenixmediation.net.

I’m Sticking with Zoom for Mediation

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 wcea@beckerlawyers.com.